Employment Newsletter Ashurst Paris January 2023
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The Ashurst Paris employment team wish you a happy 2023, and this newsletter rounds up the latest legislative, regulatory and case law news.
The law, adopted by Parliament on 17 November 2022 and published in the Official Journal on 22 December, fundamentally changes the rights to unemployment insurance. The terms relating to implementation will be set out by decree.
In addition to the presumption that an employee has resigned where an employee stops showing up for work without the employer’s permission and without any justification, the new law abolishes unemployment insurance where an employee repeatedly refuses to accept permanent contract offers. It also authorises the government to set the rules relating to unemployment insurance.
Going forward, an employee who refuses two permanent contracts offers within a period of 12 months following a fixed-term contract or a temporary contract will lose the benefit of unemployment insurance. The offer of a permanent contract must relate to the same job or a similar job, with (i) an at least equivalent remuneration for an equivalent working time, (ii) the same status (“classification”) and (iii) no change in the place of work.
In practice, the employer (or the user company), will notify the employee on a fixed-term or temporary contract about the permanent contract offer in writing. Where the employee refuses the offer of a permanent contract, the employer will inform Pôle emploi (the French unemployment agency).
The new law also provides a mechanism for adjusting the period over which compensation is paid to reflect the labour market conditions. From 1 February 2023, this period may be reduced to encourage people to return to work when the economic situation is favourable. However, the current compensation rules will apply during periods of greater unemployment.
The bill aimed at transposing Directive 2019/1152 dated 20 June 2019, voted by the Senate on 13 December and sent to the National Assembly, provides in particular:
By decree n° 2022-1607 dated 23 December 2022, the amount of the gross hourly minimum wage increases from €11.07 to €11.27. The gross monthly amount is also increased to €1,709.28, i.e. a net amount of €1,353.07.
In a question and answer article dated 24 October 2022, the CNIL provided details about professional elections and personal data.
The only information that an employer can include on an electoral list about an employee is their surname, first name, age, company position and the seniority of the employee. It must not include the employee's address.
For electronic voting, there are no prior formalities which need to be agreed with the CNIL, but the employer must comply with the GDPR requirements such as informing employees how the electronic voting system will operate, by providing complete and easily accessible information.
Additionally, the election organiser must not send to the voter's home his identifier and his password in two separate postal envelopes. This information must be sent by two different communication channels to reduce the risk of them being stolen by a third party (i.e. postal, email to their professional address, hand delivery). They cannot be sent to the employee's personal e-mail address unless the employee has expressly agreed.
The Court of Cassation (the French Supreme Court) has confirmed that only evidence of the detriment which the settlement payment aims to compensate matters. Therefore, as long as an employer can prove that the settlement sum paid to the employee is of an indemnitary nature, it is exempt from social security contributions.
If the settlement sum paid is not included on the list of compensation payments which are “limitatively listed" by article 80 duodecies of the General Tax Code, it is subject to social security contributions, unless the employer provides proof of the indemnitary nature of this payment.
In other words, the exemption from social security contributions of a settlement payment will apply:
The URSSAF (who collect and distribute social security contributions in France) pursued a claim against a company as it considered that the settlement compensation paid to the employee did not indemnify a detriment suffered by the employee when the employer had exercised its right to terminate the employee’s "internship" and paid him money as compensation. The first instance judges, whose findings were confirmed by the Court of Cassation, considered that the disputed sum was made on an exclusively indemnitary basis.
After several years of resistance, in a judgment on 23 November 2022, the Court of Cassation has finally aligned its position with that of the Court of Justice of the European Union: the travel time of a travelling employee, subject to some conditions, should be recognised as working time.
In this case, during his journeys in a company vehicle the employee had to make appointments, as well as make and answer work-related calls. On occasions he had to stay overnight in a hotel so that he could make his scheduled visits the next day. The Court of Cassation confirmed the judgment of the Court of Appeal that these facts lead to consider such time as effective working time. The employer was, therefore, ordered to pay back pay for the overtime worked.
This means that if there is a dispute involving an employee who travels, the court will have to decide whether the employee is subject to his employer’s instructions (and therefore is not able to do his own activities) during the travel time to get to/from his first/last client.
When an employee has a physical incapacity diagnosed by an occupational doctor, whether or not incurred at work, the employer must offer them another job suitable to their abilities after consulting the CSE (The Social and Economic Committee (Works Council)) in accordance with article L. 1226-2 of the French Labour Code.
However, when an employee is declared unfit for his job (incapacity incurred at work), the employer does not have to consult with the CSE when the notice of incapacity contains an express exemption from the employer having to offer them another suitable job.
This already applies to incapacity incurred at work and it now applies to incapacity not incurred at work: when the occupational doctor has expressly confirmed that in their opinion the continuation of the employee in a job would be seriously prejudicial to their health or that the state of health of the employee does not allow the employer to offer them another suitable job, the employer does not have to consult staff representatives. When drafting the incapacity notice the doctor must ensure that they complete the relevant box.
Authors: Muriel Pariente, Partner
The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
Readers should take legal advice before applying it to specific issues or transactions.