International Labor & Employment Law Committee Newsletter

Issue: July 2012

Editor: Tim Darby | European Editor: Paul Callaghan | Canada Editor: Gilles Touchette | Asia and Oceania Editor: Ute Krudewagen

France, continued

Sexual Harassment Criminal Code Provision Repealed for Vagueness

Agnes Aknin Erovic, JeantetAssocies, Paris, France

The component elements of France's criminal code provision on sexual harassment, Article 222-23, are not sufficiently defined and so the provision is void for noncompliance with the French constitution, France's Constitutional Council has found1 on the basis of the principles of clarity and precision of the law. This decision came after a complaint made by a former deputy mayor in the southern Rhone region who had been sentenced to three months in prison and a €5,000 fine for sexually harassing three employees.

Several feminist groups have claimed that this decision is a clear message of impunity aimed at harassers.

The newly elected French parliament is already working on a new version of this article in an attempt to fill the legal void. Article 222-33 of the criminal code was not frequently used by victims of sexual harassment who generally prefer to start litigations before a labor court in order to get damages. Considering the current absence of legal ground for sexual harassment, public prosecutors, when involved, are trying to continue criminal actions on other grounds (e.g. intentional violence, attempts to commit sexual offences, etc.)

Article 222-33 of the French criminal code stated:

The act of harassing others with the goal of obtaining sexual favors is punishable by one year of imprisonment and 15,000 Euros in fines.

1France's Constitutional Council, Decision n°2012-240 QPC, May 4, 2012.

A Job Saving Plan Cannot Be Cancelled for Lack of Economic Reasons for the Job Reductions

Agnes Aknin Erovic, JeantetAssocies, Paris, France

There is no legal basis in the French labor code that a court can utilize to cancel a job-saving (reduction in force) plan because of lack of economic grounds for the plan, the French Supreme Court ruled May 3, 2012 in the Viveo case.1 The only basis on which a court can rely to cancel the plan is if the social and financial measures included in the document to compensate employees for the reductions are not significant enough in light of the economic means of the company and its group of companies. If the court does cancel the plan on the latter basis, employees can either be reinstated in the company or get damages that cannot be less than 12 months' gross remuneration.

In the case at stake, several unions had decided to initiate summary proceedings against the employer because of the lack of economic reasons for the plan. The unions had been successful before the Court of Appeals in Paris, which cancelled the plan. The Court of Appeals justified its decision by the fact the employer left unanswered the economic report prepared by the works council's expert that had seriously challenged the economic grounds of the reorganization and the reduction in force. The Court of Appeals requested that the employer restart the whole consultation process from the very beginning. However, in its highly anticipated decision of May 3, 2012 the French Supreme Court quashed the decision of the Court of appeals

Basically, a job-saving plan—a document that is compulsory in companies with more than 50 employees considering the termination of more than 10 employees in a 30-day period—is divided into two parts:

  • the first part explains in details the economic difficulties both at the international and the French levels grounding the reorganization project and the contemplated reduction in force;
  • the second part details the social measures offered by the employer to minimize the number of jobless employees and the measures to assist them in their job search after their termination and the severance package that will be paid to them to compensate the damage suffered due to their termination.

It is now clear that only the second part of the plan is likely to be cancelled in court.

1French Supreme Court, May 3, 2012, n°11-20.741

Return to Home Page | Continue to the following pages

New Dad and Partner Paid Leave Takes Effect in 2013 | New Regulations Issued after Occupational Disease Law Is Amended | Regulations Protecting Female Employees Strengthened | Fourth Draft Opinion on Handling of Employment Disputes Issued by Supreme People's Court | Failure to Follow Offer Letter with Promised Written Employment Contract Leads to Court-Ordered Penalty | First Comprehensive Law on Employment of Foreign Nationals Approved | Draft of Restrictions to Labor Dispatch Practices under Labor Contract Law Reviewed | Companies Do Not Have to Offer a Job Outside France to an Employee That Does Not Speak the Language of the Country Concerned | Naming a Folder in a Computer "My File" Is Insufficient to Invoke Employee Privacy Protections | Provident Fund Payments Have Priority in Company Liquidations over Secured Creditors and Other Payments Due to Employees | Expatriates in India Contributing to Social Security Plan in Another Country and Covered by Bilateral Economic Agreement with India Now Recognized as Exempt from Social Security Contributions in India

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