Discover this spring’s notable employment law news
By Johann Sultan, partner, and Natacha Meyer, associate
Medical inspection
The decree of July 5, 2024 (decree no. 2024-692 of July 5, 2024) lays down the terms and conditions of the medical examination carried out by the employer to verify the justification for sick leave.
The decree specifies the place where the employee may rest, the hours during which the medical examination can be carried out if the employee is “free to go out”, and whether the medical examination can be carried out at home or in the office.
Unfit at work
France’s highest judicial court – Cour de cassation – has ruled that an employee may contest the statement in the notice of unfitness that “the state of health is an obstacle to any reclassification” within the framework of the specific recourse provided for in article L. 4624-7 of the French Labor Code (Cass., July 3, 2024, no. 23-14.227). As a reminder, under this article, an employee may, within a fifteen-day period, appeal to the industrial tribunal to contest “the opinions, proposals, written conclusions or indications issued by the occupational physician based on medical evidence”.
Illegal teleworking abroad
In a ruling handed down on August 1, 2024, the Conseil de Prud’hommes de Paris upheld the dismissal for serious misconduct of an employee who had teleworked from Canada without authorization (Cons. prud’h. Paris, August 1, 2024, n°21/06451).
This is the first judgment handed down by the Paris industrial tribunal in a context of massive use of telecommuting.
Loyalty of proof
The Cour de cassation has ruled that an employee may be allowed to produce a recording made without the employer’s knowledge, provided that it is essential to the exercise of the right to prove the alleged harassment, and that the resulting invasion of the employer’s privacy is proportionate to the aim pursued (Cass. Soc., July 10, 2024, no. 23-14.900).
In this ruling, the employee had produced a transcript of a clandestine recording of a meeting with his employer, during which the latter had put pressure on him, threatening him with dismissal if he accepted a contractual severance agreement.
Damage
In two rulings dated September 4, 2024, the Cour de cassation ruled that failure to respect an employee’s break time, or to make him work during sick leave or maternity leave, necessarily causes him a prejudice entitling him to compensation (Cass. Soc., September 4, 2024, no. 23-15.944 and no. 22-16.129).While the Cour de cassation has held since a ruling in 2016 that the existence of a prejudice and its assessment fall within the sovereign discretion of the trial judge, it does admit new exceptions.
Non-competition clause
The Cour de cassation has ruled that the employer cannot validly waive the non-competition clause by sending an e-mail, since the clause provides for the employer to waive it by registered letter with acknowledgement of receipt (Cass. Soc., July 3, 2024, no. 22-17.452).Employers must therefore pay close attention to the terms and conditions for waiving the non-competition clause set out in employment contracts, and their compliance with the applicable National Collective Bargaining Agreement.
Staff representation
The expert appointed by the CSE in the event of a serious risk being identified in the company may, if necessary, interview employees without the employer’s authorization, as only the prior agreement of the persons concerned is required (Cass. Soc., July 10, 2024, no. 22-21.082).
It should be noted that the employer must be vigilant to ensure that the massive number of interviews does not result in significant costs for the expertise and disorganization within the company.
