Selected case law - France / Second semester of 2020

• Amicable termination obtained under pressure: possible annulment for invalid consent (Cass. soc. 8 July 2020, n°19-15.441)

An employer concluded an amicable termination with an employee after giving her two successive disciplinary warnings.

The employee subsequently contested this amicable termination, arguing that her consent was invalid due to the pressure exerted by her employer.

The Court of Appeal noted that the skills of the employee had never been questioned before, that the warnings were unjustified, and that the employee had seen her working conditions deteriorate with consequences to her health. The Court therefore considered that the employer had put pressure on the employee to accept the amicable termination, and that this pressure invalidated her consent.  The Court annulled the amicable termination and declared the termination to be an unfair dismissal.

The French Supreme Court confirmed the decision of the Court of Appeal. It pointed out that although a dispute between the parties at the time of the conclusion of an amicable termination agreement does not in itself affect the validity of the termination, neither party can force the other to enter into an agreement to terminate the employment relationship. 

• Changing the consultation period of the works council: an informal agreement may extend the period (Cass. soc. 8 July 2020, n°19-10.987)
  

The decision concerns an older form of French works council (CE). but also applies to the current form of works council (CSE).

A works council appointed a certified public accountant to provide assistance in the context of the mandatory annual consultations. As the accountant failed to submit his report within the legal time limit for his assignment, the employer refused to pay his fees.

However, the French Supreme Court approved a ruling that that employer must pay the expert's fees on the grounds that he had agreed with the works council to extend the time limit.

The judges found that there was in reality an informal agreement since, following exchanges between the works council and the accounting firm, after the initial deadline, the employer made additions to the economic and social database, called an extraordinary meeting of the works council to discuss the scope and cost of the expertise, and then set a date with the secretary of the works council for the submission of the expert’s report and the delivery of the works council's opinions. 

• Professional training and career interviews: the employee does not have to ask for them (Cass. soc. 16 Sept. 2020, n°18-19.889) 

An employee claimed damages for breach of the employer's legal and contractual obligation to provide training and career interviews (a meeting designed to assess the training needs and career development of the employee).

The French Supreme Court overturned the decision of the Court of Appeal which, dismissed this claim, on the basis that the employee had never requested training or career interviews.

The French Supreme Court stated that the employer is required to ensure that employees are trained and developed for their position so that they maintain their ability to remain in employment, and in particular the employer is required to organize a career interview every two years.

The French Supreme Court stated that the employee's attitude has no impact on the employer's obligation.

• Chairmanship of the works council: an employee on secondment may chair the works council (Cass. soc. 25 Nov. 2020, n°19-18.681)

The decision concerns an older form of French works council (CE) but also applies to the current form of works council (CSE).

A company delegated the function of chair of its works council to employees seconded from another company.  The works council contested this arrangement arguing that if the employer delegates the chairmanship, it must be on the condition that it is to a person who is part of the company's workforce.

The French Supreme Court rejected this argument, stating that the chairmanship of the works council may be delegated to an employee seconded from another company, provided that this person has the authority, the skills and the means required to carry out his task. 

The French Supreme Court has therefore opened up the possibility of calling on a person who is not an employee of the company to chair an employee representative body.