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Use of GPS for monitoring the working time of employees

In a decision (n°10-18.036) dated 3 November 2011, the French Supreme Court has decided that an employer could use a GPS in order to monitor employees’ working time provided that no other mechanism for monitoring the working time of the employees exists.

Given that geolocalisation techniques could violate the personal rights of employees, the employer should satisfy a number of conditions before implementing such a technique:

• Each employee should be individually informed prior to putting in place the GPS,
• There should be a legitimate reason justifying the implementation of such a system and such a reason should be explained to the employees,
• Such a method cannot be used for employees who can organise their working time in an autonomous way.

Great circumspection should be shown in this respect as the use of geolocalisation for an illegal reason could constitute a criminal offence. Moreover, the employee could terminate his contract by arguing constructive dismissal.

Posted on : 01/12/2011

The counterpart to time spent changing clothes

The French Supreme Court has confirmed in a decision (n°10-16.491) dated 18 November 2011 that the conditions set out in article L.3121-3 of the French

Employment Code should be cumulatively met in order for the obligation to provide a counterpart to apply.

Thus, the employer should provide a counterpart i.e. either financial compensation or rest days to the employee if the two following conditions are cumulatively satisfied:

• On the one hand, the wearing of working clothes should be compulsory and
• On the other hand, the change of clothes should be carried out at the place of work.

Posted on : 01/12/2011

Validity of a non-compete clause.

Pursuant to a recent case (Cass.soc., 29 September 2011 n°09-68.537), the validity of a non-compete clause should be assessed at the date of agreement of the contract of employment.

A non-compete clause which does not include a financial counterpart at the date of signature of the contract of employment is null and void.

The fact that an addendum to the collective bargaining agreement, applicable to the employee’s contract but which entered into force after the signature of the employee’s contract, provides a financial counterpart has no effect on the contractual clause which is null and void.

Posted on : 03/12/2011

Stamp duty

From 1 October 2011, any individual or entity which envisages bringing an action before the French Employment Courts, i.e. as a plaintiff, should pay stamp duty in the amount of 35€ failing which the claim would be declared inadmissible. The defendant does not have to pay the stamp duty. Such stamp duty is also due before the Court of Appeal (in French “Cour d’Appel”) and the Supreme Court (in French “Cour de Cassation”).

Posted on : 04/01/2012

Retraining programme (CSP)

From 1 September 2011, a new retraining programme named in French “CSP –contrat de sécurisation professionnelle” should be offered to employees whose redundancy is contemplated. The CSP replaces the former CRP programme. It is noteworthy that only companies or group employing less than 1000 people in the EU are concerned by this new programme. The documentation relating to the CSP should be requested from the French unemployment authorities (pôle emploi) and offered to the employees failing which the employer would have to pay a contribution corresponding to two months gross salary to the French unemployment authorities.

Posted on : 04/01/2012

Expiry of the employment contract

There exists a significant difference between French employment Law and English employment Law on the expiry date of the employment contract. Under English Law, in the event that the employee is released from the performance of notice, the date of expiry of the contract corresponds to the date of notification of the dismissal (Court of Appeal of England & Wales, Ch.Civ., 30 March 2011, n°A3/2010/1028) whilst under French Law, the fact that the employee is released from the performance of notice does not bring forward the date of expiry of the contract which terminates upon expiry of notice whether or not the latter is performed. There are of course exceptions to the above principle notably in the event of dismissal for serious or gross misconduct or if a mutual termination agreement is put in place etc

Posted on : 04/01/2012

Works Council (in French “comité d’entreprise”) & Interns (in French “stagiaires”)

Recent provisions of French Law (n°2011-893) dated 28 July 2011 set out that employers should inform the Works Council in respect of the number of interns taken on by the company, the terms and conditions of work as well as the duties which are given to them.

For companies employing at least 300 people, such information should be given to the Works Council on a quarterly basis.

For companies employing less than 300 people, such information should be presented to the Works Council on an annual basis in the report relating to the economic situation of the company.

Posted on : 18/11/2011

Minimum statutory salary (in French “SMIC”)

The hourly rate of the minimum statutory salary corresponds to 9.22€ from 1 January 2012. This represents an increase of 0.3% compared to the rate applicable on 1 December 2011.

Thus, the gross monthly salary for an employee working the standard 35 hour-week (or 151.67 hours per month) should correspond to at least 1398.40€.

Posted on : 12/01/2012

Trial period

Pursuant to a recent decision (Cass.soc., 11 January 2012 n°10-17.945), the French Supreme Court has decided that a trial period for a one-year period, including renewal, is unreasonable for two reasons:

• on grounds of the purpose of a trial period and
• of the exclusion of the dismissal rules during this period.

The French Supreme Court indeed decided that a one-year trial period is contrary to the dismissal rules set out by the agreement n°158 of the International labour organisation.

Thus, even though the applicable collective bargaining agreement provides for a longer trial period than that provided by the French Employment Code, it is recommended that employers remain reasonable when setting out a trial period and to stay below the limit set out by the applicable collective bargaining agreement if it is longer than the maximum trial period set out by the French employment code.

Posted on : 16/02/2012

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