Newsletter on health, safety and working conditions – France | Second semester 2024

This newsletter highlights four significant court rulings issued in recent months:

• Working during sick leave automatically entitles an employee to compensation (Cass. soc., September 4, 2024, No. 23-15.944 FSB)

Historically, most employer breaches automatically resulted in the award of damages to the employee, without the need for the employee to prove the existence of harm. Since 2016, the French Supreme Court has moved away from this approach, now requiring employees to demonstrate actual harm to obtain compensation. This principle, however, has exceptions. Some are stipulated by law, such as unjustified job loss or invasion of privacy. Others have been established through case law, and their list continues to grow. An example of this is the employment of an employee during sick leave.

In the above case, an employee brought a matter before the labour court to seek that the court terminated her employment contract. The reason presented by the employee for the termination they sought was that the employer had committed faults including, among other things, making her work during sick leave.

The court of appeal rejected her claim for damages, reasoning that the employee had only worked occasionally (three times) and for a limited duration, and also that the employee failed to demonstrate specific harm.

The French Supreme Court disagreed, stating that "the mere breach by the employer in making an employee work during their sick leave entitles the employee to compensation."

• A service agreement cannot exempt the client from all liability in the event of a workplace accident (Cass. civ., 2nd ch., September 5, 2024, No. 21-23442 FSB)

Can an agreement for services between two companies place the burden of compensating for a workplace accident solely on the employer of the victim? This was the question the French Supreme Court had to address in the above case.

Two employees of a security company were victims of a workplace accident on the premises of a client company. The victims sued the client company, seeking to hold it responsible for their injuries and to obtain compensation. In its defense, the client company cited the service agreement with the security company, which stipulated that compensation for workplace accidents suffered by the latter's employees would be exclusively borne by their employer, even in the absence of the client's liability.

The court of appeal took a middle-ground position: it held the client company responsible for the harm suffered by the two security agents and ordered it to compensate them. However, relying on the service agreement, it decided that the security company must indemnify the client company for all the damages awarded to the victims.

The security company then appealed to the French Supreme Court, arguing that the service agreement, which imposed the burden of compensation on them as the victim’s employer, regardless of liability, was unlawful because it exempted the client from its obligations despite being responsible.

The French Supreme Court sided with the security company. It confirmed that the client company was responsible for the damages suffered by the victims as the owner and operator of the premises where the accident occurred. Furthermore, it held that the victims' employer enjoyed legal immunity in this situation (except for cases of intentional fault, which cannot be waived by agreement). Therefore, the terms of the service agreement which placed the burden of compensating for workplace accidents solely on the employer of the victim was unlawful.

• The absence of a return-to-work medical examination does not necessarily prevent dismissal (Cass. soc., October 16, 2024, No. 23-14892 D)

When an employee is on sick leave, their employment contract is suspended. Depending on the nature or duration of the leave, the employer may be required to arrange a return-to-work medical examination upon the employee's return. This examination must take place no later than 8 days after the employee returns to work. Since the return-to-work medical examination ends the suspension of the contract, can the employer discipline an employee who commits a fault between their return and the examination? The French Supreme Court recently clarified the applicable rules.

In the above case, an employee resumed her duties after a period of sick leave and immediately exhibited anxiety-inducing behavior towards her colleagues. The employer suspended her as a precautionary measure and summoned her to a pre-disciplinary hearing, which resulted in her dismissal for gross misconduct.

The employee contested this dismissal in court. The court of appeal declared the dismissal to be without real and serious cause, on the grounds that the mandatory return-to-work medical examination had not taken place. The court held that, as the return-to-work examination had not taken place, the employee’s suspension had not ended and that therefore the employer had no disciplinary authority.

The French Supreme Court overturned this decision. It held that an employee whose employment contract was suspended due to illness and who returns to work before the return-to-work medical examination is subject to the employer's disciplinary authority like any other employee. Therefore, between an employee’s return to work and their return-to-work examination, an employee does not benefit from any immunity, provided that the employer has not failed in its obligation to arrange the return-to-work examination. Were an employer not to organise a return-to-work examination, only action for a breach of the duty of loyalty could be raised against the employee.

• Failure to monitor workload can invalidate an annual working days agreement (Cass. soc., November 20, 2024, No. 23-21.020 F-D)

Annual working days agreements offer numerous advantages for tracking working time. However, their implementation and monitoring can be complex. The Labour Code requires that any collective bargaining agreement governing this arrangement must address the following points:

- Categories of employees concerned;
- Reference period for the agreement;
- Number of days included in the agreement ;
- Conditions for accounting for absences, arrivals, and departures during the period;
- Main characteristics of individual agreements ;
- Methods for regular evaluation and monitoring of the workload;
- Methods for periodic communication between employer and employee regarding the workload;
- Balance between professional and personal life;
- Remuneration and work organisation; and
- Methods for exercising the right to disconnect

If the above points are not respected, the collective bargaining agreement and the individual agreements based on it can be contested, exposing the employer to significant financial risks should a dispute arise. A recent ruling by the French Supreme Court highlights the strictness of judges on this matter.

An employee contested the validity of his annual working days agreement before the labour court, arguing that the collective bargaining agreement and the employer's measures did not allow for regular and effective monitoring of his workload.

The court of appeal upheld the validity of the agreement, considering that the employee’s collective bargaining agreement ensured reasonable working hours and sufficient rest periods through the following measures: (a) a summary of days worked, (b) a maximum number of consecutive working days, (c) compliance with minimum daily and weekly rest periods, and (d) an annual review of work organisation.

The French Supreme Court overturned this decision, noting the absence of specific mechanisms to identify and correct an excessive workload or to ensure a balanced distribution of work. According to the Court, the employer did not ensure that the workload and working hours remained reasonable. Therefore, the annual working days agreement was null and void, and the employee's working time must be calculated based on the legal duration of 35 hours, entitling him to potential back pay for overtime.