International Labor & Employment Law Committee Newsletter

Issue: March 2014

Editor: Ute Krudewagen, Associate Editor: Amie Aldana | Africa and Middle East Editor: Karen Seigel | Asia and Oceania Editor: Jason Noakes | Canada Editor: Gilles Touchette | European Editor: Paul Callaghan | Latin America Editor: Juan Carlos Varela | Law Student Editor: Liam Woods | USA: Trent Sutton


Inclusion of a Clause in an Employment Agreement Providing that the Loss of a Driver's License Would Motivate a Dismissal Is Abusive

Charles Mathieu, JeantetAssociés, Paris, France

The principle that a clause in an employment agreement should not anticipate a ground of dismissal was confirmed by a decision rendered by the Supreme Court on February 12th, 2014.1

In the case, the employee, a traveling salesman, had an employment contract that stated that the loss of his driver's license could justify ipso facto a dismissal for real and serious reasons. On this sole basis, the employer decided to terminate the employment agreement of this employee, who then challenged his dismissal.

The Court of Appeal first ruled against the employee and decided that loss of a driver's license did interfere with the proper functioning of the company, and that the dismissal was therefore justified.

The Supreme Court relied on the dismissal letter, pointing out that, under French law, the dismissal letter sets the limits of the dispute. However, as the dismissal letter only referred to the above-mentioned clause of the employment contract, the Supreme Court ruled that "a clause of an employment agreement may not validly provide that any specific circumstance could constitute a ground for dismissal."

Nevertheless, the Supreme Court recognized that the situation would have been different if the dismissal letter had referred to the impact caused to the functioning of the company as a result of the loss of the driver's license, which no longer allowed the employee to perform his job.

This decision has already been rendered in general terms by the Supreme Court, which consistently condemns such termination clauses.1

1French Supreme Court, labor section, February 12th, 2014, n°12-11.554

2French Supreme Court, labor section, November 14th, 2000, n°98-42.371

An Amicable Settlement May Restrict the Freedom of Speech of an Employee towards His Former Employer

Charles Mathieu, JeantetAssociés, Paris, France

An employer may validly restrict the freedom of speech of an ex-employee for a limited period after reaching an amicable settlement, the French Supreme Court held in its decision of January 14th, 2014.1

In the case submitted to the Court, a well-known journalist, had publicly criticized his former employer despite having an amicable settlement prohibiting such behavior. The journalist was condemned by the labor court to the payment of €400.000 of damages. The trial judges declared the clause in the settlement agreement which restricted the freedom of speech of the parties is enforceable.

The Supreme Court endorsed this decision on the ground of article 10§2 of the European Convention of Human Rights, which provides that the necessity to protect the reputation and rights of others can justify restrictions to freedom of speech when proportionate to the aim pursued.

1French Supreme Court, labor section, January 14th, 2014, n°12-27.284

Place of Residence Is Now a Possible Ground of Discrimination

Charles Mathieu, JeantetAssociés, Paris, France

Discrimination on the basis of an employee's residence is now illegal due to a new law that entered into force on February 21st 2014,1 that amended article L.1132-1 of the Labor Code and article 225-1 of the Penal Code.

According to this new law, discriminating against an employee or a candidate for a position based on the place of residence is considered discrimination, meaning that an employer should be condemned on this ground with civil and penal damages.

Thus, no person should be rejected in a hiring process or refused access to training due to his place of residence. Furthermore, no person should be punished, dismissed, subject to direct or indirect discrimination (in particular as regards remuneration), profit sharing, share distribution, training, reclassification, assignment, qualification, classification, promotion, transfer or renewal as a result of their place of residence.

Nevertheless, this law allows for positive discrimination measures for people who reside in certain geographical areas, in order to promote equal treatment.

1Law n°2014-173, 21st February 2014, Official Journal, 22nd February 2014

An Employee Can Be Dismissed because of His Inappropriate Behaviour towards Younger Employee

Charles Mathieu, JeantetAssociés, Paris, France

The inappropriate behaviour of an executive towards a younger and newly hired employee should be considered sexual harassment, the French Supreme Court has held in its decision of January 28th 2014.1

An executive, with 26 years' service, had written long letters and numerous emails in which he engaged in inappropriate behavior by inter alia expressing his willingness to meet the younger and newly hired employee alone in his office. He invited her several times despite her refusals, and sent her flowers. As a result of this behavior, the employer dismissed the executive employee for serious misconduct.

The Court of Appeal pointed out that such behavior towards the younger employee was not what was expected from an older executive. According to the Court, the age difference, seniority of the executive employee and professional situation between the two employees, should have led him to act in a more reserved and respectful manner towards the newly hired employee.

The Supreme Court agreed with this decision, stating that such behavior could justify the dismissal of the executive for sexual harassment which is serious misconduct.

This decision confirms that sexual harassment, which is prohibited by article L.1153-1 of the Labor Code, involves actions "in order to obtain sexual favors" and does not necessarily require the inducement of sexual favors.

1French Supreme Court, labor section, January 28th, 2014, n°12-20.497


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