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The French Supreme Court ruled on March 6, 2024 (n°22-11.016), that an employer cannot terminate an employee who has sent racist and xenophobic messages to a colleague via the professional email system,  if the messages were private.

Facts:

Due to an error made by one of the recipients of the emails, the employer became aware of the emails sent by the employee to his colleagues. The employee was dismissed for gross misconduct and challenged his dismissal by claiming that the employer has violated his private life as the emails were titled “personal and confidential”.

In return, the employer argued that, in accordance with the French Supreme Court’s rulings, a reason relating to an employee’s personal life can justify disciplinary dismissal if it constitutes a breach of an obligation arising from the employee’s employment contract.

Therefore, the employer claimed that the employee breached his employment contract’s obligations by sending racist and xenophobic emails via the professional email system.

The employer also argued that the employee abused the professional email system for personal purposes.Continue Reading No disciplinary action for sending private racist messages via the professional email system

In France, a health pass[1] must be presented in certain places or events where there is a high risk of COVID-19 being contracted (e.g. concert halls/cinemas, sports events, bars and restaurants, long-distance transport, shopping centres over 20,000 m², etc.) as listed by the Law no. 2021-1040 dated 5 August 2021.

Since 30 August 2021, employees working within these places are also required to present a health pass in order to continue their job role, unless this takes place in a space that is not accessible to the public or takes place outside of public opening hours.

If the employee does not have a health pass or refuses to present it, they will no longer be able to work. The employee may take rest days or paid leave in agreement with the employer. However, if an agreement is not met, the employer is required to suspend the employee’s employment contract without pay until the employee is able to present a health pass. The Law states that, after the third day of the suspension of the contract, the employer must conduct an interview with the employee during which they will discuss ways to rectify the situation. For example, this could include a temporary assignment to a position not subject to the above-mentioned obligations if the needs and organisation of the company allow it or teleworking if the employee is eligible. If they fail to come to an agreement, the Law states that “ordinary law procedures” concerning employment contracts may be applied. The text no longer states that the employee may be dismissed if they fail to present a health pass for an extended period.
Continue Reading Employees in France who fail to present a health pass risk having their employment contract suspended

In two decisions both rendered on 17 July 2019, the French Supreme Court ruled that the Macron scale (a mechanism introduced on 24 September 2017 to provide for caps and floors on damages for unfair dismissal) complies with international conventions ratified by the French government. These decisions were rendered through a specific procedure (demande d’avis) in which the French Supreme Court does not judge a case but is invited to take a legal position on a specific issue in order to harmonize legal practice.

These decisions should have ended the dissension of several French industrial tribunals which had set aside the Macron scale, considering it to be in breach of article 10 of the Termination of Employment Convention of the International Labor Organization and article 24 of the European Social Charter, both of which provide for adequate protection and appropriate compensation in the event of unfair dismissal.
Continue Reading Macron scale of damages for unfair dismissal: the lower French industrial tribunals strike back

Welcome to Reed Smith’s Monthly Global Employment Law blog post. This month’s post covers the legality of employee strikes in five key jurisdictions: France, Germany, Hong Kong, the UK and the United States.

France

According to the French Supreme Court, a lawful strike action is defined as a collective cessation of work, the purpose of which is to support professional claims. In the private sector, the right to strike, as a constitutional right, cannot be restricted or regulated by a collective agreement or by the employer itself. There is thus no obligation to comply with a specific notice period prior to going on strike. Employees, however, must inform the employer of their claims at the time they decide to stop working and go on strike.

Employment contracts are suspended during the strike (i.e., the employees do not perform their duties and the employer does not pay them). Employees on strike are protected against any disciplinary sanctions, including dismissals in the sense that any sanctions that may be imposed where there is lawful strike action are deemed to be null and void. This protection does not apply when the strike is unlawful (i.e., the action does not support professional claims or where the employees on strike prevent non-strikers from working).

The majority of strike actions are usually settled without having to commence legal action before the courts.

Germany

In Germany, a strike is the typical industrial action on the part of the employees and trade unions. To be legal, a strike must meet certain formal requirements and pursue a legitimate purpose. Formally, a strike must be (i) organised by a trade union; and (ii) called following a strike vote conducted according to democratic principles. Therefore, a so-called “wildcat” strike, which is not organised by a trade union, is illegal. Any strike must pursue a legal purpose, which can only be to change working conditions. Furthermore, a strike must be conducted in a reasonable and lawful manner. Therefore, the union may not occupy the premises, call on customers of the employer to boycott the product, or prevent employees willing to work from entering the premises and working.

Continue Reading The legality of employee strike action

This post was also written by Martin Gätzner.

France

Under French law, the employment contract of an employee who is on sick leave is suspended. The employee is expected to inform his or her employer and the relevant social security organisations of the sickness absence within 48 hours, and will be entitled to receive social security allowances while absent from work.

Depending on the provisions of the applicable collective bargaining agreement, employees may be entitled to receive their full salary for a limited period. In such cases it falls to the employer to pay the difference between usual salary and the allowances provided by the French social security organisations.Continue Reading Sickness absence management – employee rights, risks and recommendations

This post was also written by Claudia Röthlingshöfer.

Welcome to Reed Smith’s monthly global employment law blog post. This month’s post covers the protection afforded to whistleblowers around the world.

France

Under French law, employees cannot be sanctioned, dismissed or be subject to direct or indirect discriminatory measures (especially concerning salary, training, reclassification or appointment)…

United Kingdom

In the UK, a contractual term restricting an employee’s activities after termination of employment will be void for being in restraint of trade and contrary to public policy, unless the employer can show that:

  • It has a legitimate proprietary interest that the term protects
  • The scope and duration of the protection sought goes

…

Welcome to the first in a series of blogs covering global employment law issues. Each month we will be sending you information about key employment law topics from our offices across the globe. The first of our topics is:

Holiday Pay – What Are Your Minimum Legal Requirements?

United Kingdom

In the United Kingdom, all…