International Labor & Employment Law Committee Newsletter

Issue: February 2013

Editor: Tim Darby | Africa and Middle East Editor: Karen Seigel | Asia and Oceania Editor: Ute Krudewagen | Canada Editor: Gilles Touchette | European Editor: Paul Callaghan | Latin America Editor: Juan Carlos Varela | Law Student Editor: Irene Lehne, Earle Mack School of Law at Drexel University

France

Employee Can Claim Damages for Constructive Dismissal for Employer's Misconduct Outside of the Workplace, French Supreme Court Rules

Charles Mathieu, Jeantet Associés, Paris, France

The acts committed by an employer against an employee outside of the workplace can justify a claim by the latter for constructive dismissal if such acts are linked to a work-related dispute, the French Supreme Court has ruled for the first time in a decision rendered January 23, 2013.1

While the employee was on sick leave as a result of a nervous breakdown, she decided to go to her bridge club for the evening. Her employer burst into the premises, challenged in public the reality of the employee's sickness, and requested her to provide the sick note. The employee, who felt assaulted, claimed damages for constructive dismissal.

The French Supreme Court had already ruled that an employee's behavior during personal time could justify a dismissal. The Court now has applied the same reasoning to the employer.

In light of such decision, the employer can be held liable for its behavior towards its employees each time this is related to work, whenever and wherever that behavior takes place.

1French Supreme court, labor section, 23rd January, 2013, n° 11-20.356

Use of CCTV to Continuously Monitor Security Employees at Work Was Not Proportionate to the Intended Purpose, French Data Protection Agency Decides

Charles Mathieu, Jeantet Associés, Paris, France

A company which had continuously monitored its security staff, employed by a subcontractor, with a closed-circuit television system (CCTV), during its working time was in breach of the obligation of proportionality in the use of CCTV, the "CNIL" (the French data protection agency) decided in a deliberation rendered January 3, 2013.1 However, while the CNIL required the defendant to remove the monitoring device, it awarded only one Euro in damages.

The monitoring practice had not been properly declared to the CNIL prior to installation of the CCTV system as required by French data protection law and even if it had been properly declared, any processing of personal data must be appropriate, relevant, and not excessive with regard to the purposes for which such processing was implemented. The French labor code also forbids restrictions on individual and collective liberties that are not proportionate to the intended purpose. According to the CNIL, using CCTV for continuously monitoring employees at work was not proportionate here.

In the case, the security employees of a mall on the Champs Elysées in Paris filed a complaint to the CNIL about the presence of a video camera filming them continuously. In their defense, the mall's co-owners association argued that this video camera was used for the purposes of protecting persons and assets. However, the CNIL investigation revealed that the employer used this video camera for the final purposes of monitoring the activities of the employees and their presence at work. Under these circumstances, the CNIL required the co-owner's association to remove the monitoring device and to pay one Euro of damages as a symbolic condemnation.

1CNIL deliberation, restricted committee, 3rd January, 2013, n°2012-475.

A Mutual Termination Agreement Cannot Be Validly Signed in a Context of Moral Harassment, French Supreme Court Rules

Charles Mathieu, Jeantet Associés, Paris, France

A mutual termination agreement signed between an employee and an employer is null and void in a situation where the employee suffered moral harassment at work, the French Supreme Court held in its decision of January 30, 2013.1

The employee was on sick leave as a result of a nervous breakdown related to moral harassment at work. A week before her return to work, the employee received from her employer a proposal for a mutual termination agreement, which she agreed to sign. However, according to the Court a mutual termination agreement is null and void in the event of moral harassment of the employee since in such a situation the latter's consent cannot be given freely. Indeed, the Court considered that psychological disorders which result from harassment represent a situation involving violence as defined by Article 1112 of the French Civil Code, justifying the cancellation of the termination agreement for lack of consent and the payment of damages by the employer for abusive dismissal.

While lower jurisdictions have already ruled in this way, this is the first time that such a decision has been issued by the Supreme Court.

1French Supreme court, labor section, 30th January, 2013, n°11-22.332.

Restructuring Plans Must Comply with the Principle of Equal Treatment but May Differentiate by Groups, French Supreme Court Rules

Charles Mathieu, Jeantet Associés, Paris, France

Employees who receive an early retirement or a disability pension can legitimately be excluded from eligibility for additional dismissal indemnities granted to other employees, the French Supreme Court ruled on December 5, 2012.1

According to the Court, a social plan may contain measures reserved for various categories of employees provided that rules determining the conditions for being entitled to such measures are previously identified and that each employee placed in the same situation benefits from the same measures. Indeed, the Court considers that employees placed in a particular situation can be treated in a different way than employees placed in another situation. In the case at stake, the Court held that employees who receive regular allowances (early retirement or disability pension) were in a situation less precarious than active employees who would totally lose their incomes after their dismissal.

With this decision, the Supreme Court confirms at the same time the application of the fundamental principle of equal treatment in restructuring plans for employees in the same situation and the possibility to discriminate according to the situation of different groups of employees.

1French Supreme Court, social section, 5th December 2012, n° 10-24.204.

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