Selected French legal developments / H1 2018

This newsletter summarises five significant judicial decisions and legal developments over recent months. 

1. Filing collective bargaining agreements: A fully electronic procedure (Decree n° 2018-362 of May 15, 2018) 

Collective bargaining agreements (notably site-wide, company-wide, and group-wide agreements) are now publicly available at legifrance.gouv.fr after being filed with the competent Labor Authority. 

The decree of May 15, 2018 marks a change in the procedure for filing such agreements. 

As before, a copy of collective bargaining agreements must be filed with the clerk of the competent employment tribunal. But now electronic filing has replaced paper filing and e-mailing to the French administration. 

Collective bargaining agreements and attached documents must now be filed on the “Téléaccords” platform, accessible from the site www.teleaccords.travail-emploi.gouv.fr. Amendments and appendices to agreements are also filed this way. 

The decree specifies the documents to be attached in the filing: the full and signed version of the agreement in PDF format, the notice to the unions, and the publishable and anonymized version of the agreement in DOCX format. In practice, it will be up to the applicant to enter information relating to his identity and to the company and to attach the required documents in digital format. 

2. Amicable terminations: The withdrawal letter can be sent up until midnight on the date that the withdrawal period ends (Cass. soc., February 14, 2018, n°17-10.035) 

The legal withdrawal period for an amicable termination is 15 calendar days. The Supreme Court has just decided that a withdrawal is valid as long as the withdrawal letter is sent to the other party by midnight of the fifteenth day. The date of receipt does not matter. 

In practice, therefore, it is best to wait until two days after the end of the withdrawal period (i.e., two days after the fifteenth day at midnight) before submission to the Labor Administration for approval, in case any withdrawal has been sent at the last moment. If, however, the parties wish to terminate the employment contract quickly and plan to apply for approval the day after the withdrawal period ends, it is advisable to inform the Labor Administration of any intervening withdrawal as soon as the letter is received. 

3. Company theft: The employer can conduct an internal investigation and order an employee to remain in a particular office (Cass. crim., February 28, 2018, n° 17-81.929) 

An employee caught stealing from the company by security cameras was subsequently driven by his employer to a separate office. The employer ordered him not to move until the employer could investigate and take statements from the employee. 

The Criminal Division of the Supreme Court recognized that if an employer has knowledge of acts punishable by criminal law, and which may be subject to disciplinary action, he may proceed to investigate and ask for an explanation from the employee. 

The Criminal Division of the Supreme Court referred the case to another Court of Appeal to clarify whether the employer’s actions deprived the employee of his freedom of movement. 

4. Mobility and disruption of family life: A mobility clause covering France in its entirety is valid (Cass. soc., February 14, 2018, n°16-23.042) 

A mobility clause is valid even if it refers simply to "current and/or future sites [of the company] in France." 

During his employment, an employee does not necessarily need to know the exact location of any future sites. It does not matter if the clause does not specify whether only Metropolitan France is concerned. The Supreme Court held that the transfer of an employee was justified by the considerable and lasting reduction in the activity to which the employee was assigned. Thus, the impact of the relocation on the employee's family life was justified and proportionate to the aim pursued. 

5. Exclusivity clause: Precisions concerning an exclusivity clause (Cass. soc., May 16, 2018, n°16-25.272) 

An exclusivity clause must be precise and must not be written in general terms. The Supreme Court held an exclusivity clause to be invalid as it stated that the employee must seek approval from the employer to engage in "any complementary activity." 

The Supreme Court noted that the clause did not specify the contours of a "complementary activity," in particular whether it encompassed activity that is voluntary or paid, work-related or recreational. The Court observed that the scope of the clause was not limited. It was therefore impossible to verify whether the restriction of the employee's freedom to work was justified and proportionate. A dismissal based on violation of a vague exclusivity clause could be challenged for being without real and serious cause, as in the case in question.

Lire en français: Sélection de jurisprudence - France / Premier semestre 2018