Employment Update, France - June 2007

28 June 2007

Christopher Ivey

New Legislation

The CNIL issues new recommendations on race-related equal opportunities monitoring

Further to the reservations it made on the subject in 2005, on 16 May 2007 the French data protection agency (CNIL) issued new recommendations, refusing to authorise specific equal opportunities monitoring practices used to record employees' race and to identify discriminatory practices. While the CNIL accepts that data concerning employees' nationality and the birth place of their parents could be recorded, if such data is obtained from the employees themselves and used as part of a national anti-discrimination program, it recommends against recording data on employees’ ethnic origin or analysis of names and surnames to define ethnic categories. Such data is not relevant, and there is the risk that this data might be used for other purposes. Any data that is collected must remain anonymous, and may only be used for statistical purposes. The purpose of the monitoring must be clearly stated and those employees concerned must be informed of the reason and method behind the monitoring. While the new recommendations demonstrate openness to monitoring practices such as these, their scope is still considerably more restricted in France than in many other countries.

New subsidies for the hotel/café/restaurant industry

The 2007 Finance law introduced subsidies for "extra" short term contracts in the hotel/café/restaurant industry, but the terms of these subsidies were left undefined. A Decree dated 3 May 2007 has now been published, defining these subsidies, which are fixed at €1.50 per hour worked under fixed term contracts of a maximum of two days, up to an annual limit of €540 per year.

Electronic voting in employee representative elections

Electronic voting in employee representative elections has been authorised since the 2004 law for the Digital Economy came into force, but until 25 April 2007 (by Decree), the conditions to implement electronic voting were never defined. In order to implement electronic voting, employers are required to execute a company- or group-agreement, including; minimum specifications, a detailed description of the system, confirmation that the system has been declared to the CNIL, and a training session for employee and trade union representatives and members of the polling office. It is particularly important for the votes to remain anonymous. Specific security measures must therefore be implemented to avoid tampering and ensure confidentiality.

The hotel/café/restaurant industry – new collective bargaining agreement working time provisions

Following the rejection of the previous collective bargaining agreement on working time provisions in the hotel/café/restaurant industry [see Employment Update, France - November 2006], a new agreement, signed by trade unions in February 2007 applicable to the whole industry sector came into force on 29 March 2007. The main provisions of this agreement are as follows:

  • 39 hours per week, but with paid overtime (or compensated by rest) as of the 36th hour;

  • A yearly maximum of 360 hours overtime is applied (double that of the previous agreement);

  • 8 "public holiday" days granted in addition to 5 weeks annual leave (rather than the 6 weeks previously granted); and

  • Employees on night shifts benefit from rest calculated at 1% per hour worked at night, limited to 2 days per year.

This agreement has resolved the lacuna created by rejection of the previous agreement. It also prevents employees from making claims in respect of common law working time calculations which is something that had previously been a concern.

Case update

Employee's right to privacy – post received at work

Emails, letters, and any kind of correspondence of a personal nature sent to an employee at their workplace cannot be opened or read by their employer due to the strong principles of confidentiality that exist. However, where there is no indication of the personal or confidential nature of such a letter, the Cour de Cassation (18 May 2007) has held that the employer could open the letter even if the employee was not present. In the present case, the letter in question was in fact a magazine of a particularly "obscene" nature. It was held that while the employer could open the envelope, no disciplinary action could be taken against the employee on the basis of the disturbance caused in the company by the magazine. The Cour held that to do so would be an infringement of the employee's right to privacy.

Resignation or constructive dismissal

In three cases on 9 May 2007, the Cour de Cassation clarified the distinction between a simple resignation for personal reasons and a forced resignation due to the employer's breach of contract (i.e. constructive dismissal). The Cour held that where the employees resigned unequivocally for personal reasons, and then several months (or years) later brought a case before the employment tribunal, claiming that their resignation should be re-qualified as constructive dismissal (because the grounds for their resignation were based on the employer’s breach of contract (e.g. unpaid overtime, prevention from taking annual leave or compensatory rest, payment of travel time as working time, or compensation for sick leave)), in such cases, the claims should be rejected.

It was held however, that where the resignation was not unequivocal, and where the employee could prove that the employer's breach of contract was the reason for the resignation (e.g. by demonstrating that the employees had alerted the labour inspectorate prior to resigning, or had attached a list of sums due to their resignation letters) only then could a court hold the resignation to be constructive dismissal and grant the employee the applicable indemnities. Although these cases help to clarify the issue of constructive dismissal, this area remains largely fact-based and will ultimately be a matter for the court's discretion.

Non compete clauses – financial consideration

It is consistent case law that consideration must be paid for the restriction of the employee's freedom to find another job with a competitor. This consideration is generally provided for over the period to which the clause applies and in a recent case (7 March 2007), the Cour de Cassation upheld this view that no other option is possible. Where an employer granted an employee an increase in salary during the term of employment as a replacement for the post-termination consideration for the restrictive covenant, the Cour held that the clause was null and void. Where the employee has respected this clause, payment of consideration after termination would also be required. In order for the covenant to be valid, the consideration must be paid after termination of the employment contract. In this case, the covenant calculated the consideration on the duration of the employment contract. The Cour also rejected this possibility, indicating that the consideration should be based on the duration of the restrictive covenant as opposed to the duration of the employment.