In the last 12 months, the main changes in French employment law were the following.
However, during the last 12 months, changes in French employment law have mainly concerned the COVID-19 crisis, and the adoption of some other legislation, including on unemployment insurance and pensions, has been delayed.
The COVID-19 crisis has led the French government to adopt temporary measures.
Firstly, the French government prohibited gatherings of a specific number of people in the same place. A nationwide lockdown took place from March 17th to May 11th, with fines for non-compliance. During the lockdown, the French government urged people to work from home and, if they could not, to take special leave for the care of children under 16 (a type of sick leave) or to use the existing partial activity scheme, which has been extended to benefit a larger number of companies and employees. This scheme allows companies to reduce working hours (or to shut down temporarily) while maintaining employees’ remuneration for hours off work, and to be reimbursed by the state.
Secondly, the French government took measures to suspend or extend deadlines for judicial, administrative or medical proceedings. Business resumption plans intended to limit the spread of COVID-19 in order to protect the health of employees were also prepared for several business sectors by the government with the help of trade unions.
Thirdly, in June 2020, a special partial activity scheme, “Reduced Activity for Job Preservation”, was created, targeting companies facing a lasting reduction in activity whose survival is unlikely. The scheme is effective until 30 June 2022 and is similar to the existing scheme, except that it can be set up by a collective agreement or a unilateral document from the employer with specific commitments in terms of employment.
Finally, the French government has urged and still promotes respect for social distancing, particularly in enclosed spaces such as public transport and shopping centres.
The French Labour Code, although it applies to all employees, refers to different statuses or categories of employees to which some specific provisions may apply. The most common are manual and clerical workers (ouvriers and employés), skilled workers and supervisors (techniciens and agents de maîtrise), and managers (cadres). Collective bargaining agreements may also have specific provisions for these categories, including on compensation, severance pay and probationary periods.
Indefinite-term employment contracts are standard. The contract does not necessarily have to be written and may be verbal or result from an exchange of correspondence. However, due to the complexity of working time arrangements and compensation structures, most contracts are written and contain detailed information such as the employee’s job title and duties, working time and compensation.
Fixed-term employment contracts must be written and concluded for precise temporary tasks that are restrictively enumerated in the French Labour Code (absence, maternity, increase of activity). They may not generally be used to fill a job that is linked to the usual and permanent activity of the company. Mandatory clauses to be included in fixed-term employment contracts relate to the reason for fixed-term employment (replacement of an absent employee, temporary increase in workload or a job that is temporary by nature), the job description, the employee’s compensation, the minimum duration or the term of the contract, the applicable collective bargaining agreement, etc. If mandatory material is not included, the sanction is the reclassification of the fixed-term contract as an indefinite employment contract.
All employment contracts, their amendments and all enclosed documents (such as bonus plans) must be drafted in French. Otherwise, the contractual provisions are not enforceable against employees.
Maximum Working Hours per Day/Week
Employees should not work more than ten hours per day, or 13 hours, including lunch and other breaks. They may not exceed 48 hours in a given week and 44 hours (or 46 hours under certain conditions) per week on average over a period of 12 consecutive weeks. Specific provisions are set out for young workers (under 18) and night workers. Moreover, as soon as the hours worked in a day reach six hours, workers are entitled to a 20-minute break.
Working Time Arrangements
When employers want to adapt employees’ patterns of work to avoid overtime in periods of high activity, the Labour Code allows them, under certain conditions, to organise working hours over a period longer than a week and at most equal to a year. Under all circumstances, the employee must have at least 11 consecutive hours of rest per day and 35 consecutive hours of rest per week.
There are specific provisions regarding managers (cadres), especially for those who have sufficient autonomy to organise their own working hours. They can be subject to a total remuneration agreement (forfait), providing that a collective bargaining agreement and individual employment contract allow this. The total remuneration then corresponds to a number of working days per year, which cannot exceed 218.
Senior managers (cadres dirigeants) are not subject to the legal provisions on working hours. However, the Court of Cassation (the highest French court) has placed strict limits on this category, taking several criteria into consideration, including that the post-holder should have important responsibilities, implying a high degree of independence in the organisation of their hours of work, their autonomy in decision-making and their level of remuneration should be among the highest in the company.
Specific Requirements for Part-Time Contracts
Working time for part-time employees may not be less than 24 hours per week (or 104 hours per month). Specific provisions exist in certain collective bargaining agreements and there are legal exceptions for specific categories of employees (students, for example). Part-time employees have priority for recruitment to full-time positions.
Part-time employment contracts must always be in writing. They must include information on:
If these matters are not covered, the penalty may be reclassification of the contract as a full-time contract.
Any work over and above 35 hours per week qualifies as overtime. The Labour Code limits overtime to 220 hours per year if the collective bargaining agreement does not provide for a lower limit. Employees are compensated with a 25% enhancement for each of their first eight hours of overtime (ie, from the 36th hour to the 43rd hour) and with a 50% enhancement for subsequent hours worked. A collective bargaining agreement may stipulate a different percentage enhancement but it cannot be less than 10% per overtime hour.
Overtime hours above the maximum amount of annual overtime hours entitle an employee to be compensated by a compulsory rest period.
Minimum Wage Requirements
The minimum national wage, known as the salaire minimum de croissance, or SMIC, is determined by the government and is adjusted in line with inflation at the beginning of each year. It was set at EUR10.15 per hour in January 2020 or EUR1,539.42 per month for an employee who works 35 hours per week.
Collective bargaining agreements often fix minimum wages in relation to the status and grade of the employee. They are applicable in lieu of the SMIC if they are more favourable to the employees.
Entitlement to the 13th Month, Bonuses, Etc
The 13th month of salary is an annual bonus paid to employees, corresponding to their monthly salary. It can be paid as a single payment at the end of the year or several payments throughout the year. This bonus is usually found in employment contracts or in the applicable national or company-level collective bargaining agreement.
Other types of bonuses may be granted to employees as a result of collective bargaining agreements, employment contracts, unilateral decisions by the employer, etc. Bonuses may be linked to the employee’s performance (productivity bonuses), seniority or skills. Based on the source of the bonus, the applied rules may differ, especially when the employer wants to modify or to eliminate the bonus.
Employees may also have benefits in kind, such as private use of a company car or housing, which are subject to social security contributions.
Employees may also receive bonuses from profit-sharing schemes. These are mandatory in all companies employing at least 50 French-based employees (accords de participation), and there is also provision for optional profit-sharing agreements (accords d’intéressement). Benefits from these schemes are exempt from social security contributions under certain conditions.
The government intervenes to adjust the real wages of employees to the socio-economic context. It may create bonuses such as the exceptional purchasing power bonus or remove or reduce taxes and/or social security contributions in order to increase employees’ purchasing power.
Vacation and Vacation Pay
Employees are entitled to at least two-and-a-half days of paid vacation per month worked during a “reference year” (ie, from June 1st of the current year to May 31st of the next year). This reference year may vary if there is a company-level agreement or a collective bargaining agreement. The paid vacation must be taken during a specific period that runs from May 1st to October 31st.
The applicable collective bargaining agreement may also provide for additional paid vacation based on an employee’s seniority and the Labour Code provides for paid leave for certain events, such as weddings, births or deaths.
In addition, employees are usually entitled to paid leave on the following public holidays:
Employees who work on these days will receive compensatory rest periods and/or additional financial compensation. Employees may also benefit, under certain conditions, from unpaid leave such as sabbatical leave or leave to start a business.
Compulsory Paid Leave: Maternity, Disability, Childcare and Illness
Sick or injured employees have to submit a medical certificate to their employer within 48 hours of their absence. Sick pay is paid from social security funds (health insurance) and the employer may be required to contribute, especially when the employee in question has at least one year of seniority or when the collective bargaining agreement requires it.
Pregnant employees are entitled to a total of 16 weeks of maternity leave (six weeks prior to the expected date of delivery and ten weeks after the delivery). The maternity leave entitlement increases (up to 46 weeks) for multiple births or when the employee already has children. The employee can shorten the maternity leave, but she must take at least eight weeks’ leave, of which six weeks should be after the delivery. During maternity leave, the social security funds pay maternity benefit, based on average salary over the last three months.
Fathers are entitled to paternity leave of 11 consecutive days (18 days for multiple births). For compensation to be paid from the social security funds, the leave must begin within the four months following the birth of the child.
In addition to the above benefits, employees are entitled to parental leave allowing them to stop work or work part-time for an entire year. They are also entitled to adoption leave of ten weeks when they adopt a child and, during that leave, one parent is entitled to maternity benefits.
Confidentiality and Non-disparagement Clauses
An employment contract may contain a confidentiality, discretion or professional secrecy clause. In the absence of such a clause, the employee remains bound by a general obligation of loyalty that prohibits them from disclosing information likely to harm the company. This obligation is particularly important for senior managers, especially with regard to information concerning any difficulty the company may be experiencing.
A breach of this obligation constitutes serious or gross misconduct depending on the circumstances and the duties of the employee. It also entitles the employer to claim damages and to obtain an injunction in order to restrain the employee from disclosing any confidential information.
An employment contract may also include a non-disparagement clause. This clause, as it limits the employee's freedom of expression, must be justified and proportionate to the aim pursued by the employer; ie, the legitimate interest of the company.
Employees may incur civil liability in respect of third parties only when they act outside their functions, without authorisation and for purposes unrelated to their duties. Otherwise, the employer is liable. Employees are liable to their employer only if they commit gross misconduct; ie, they act with an intention to harm the employer or the company.
Employees may be held criminally liable for offences committed in the company that are personally attributable to them. For some offences, an employee is liable only if the employer has delegated authority to him or her.
Requirements for the Validity of Non-compete Clauses
A non-compete clause prohibits employees from competing with their former employer through professional activities after the termination of their employment contract.
A non-compete clause is only valid if it:
Collective bargaining agreements may include further requirements for the validity of such clauses.
Enforcement of Non-compete Clauses
If the non-compete clause is valid and the employee has breached it, the former employer can claim damages from the employee and obtain an injunction from the labour court to stop the competing activities. The former employer can also claim damages from the new employer if the latter is aware of the non-compete clause binding the employee.
If the non-compete clause is void or if the former employer has breached it, an employee who has complied with the clause may sue the former employer to claim damages, especially for preventing the employee from finding a job. The employee can also seek to hold the new employer liable based on the commercial concept of unfair competition.
Non-solicitation Clause - Employees
A non-solicitation of employees clause prevents an employer from recruiting the employees of another employer even after the termination of their employment contracts. However, if an employee cannot be recruited to a new job because of it, they are entitled to claim damages from their former employer. Clauses of this type are particularly common in commercial contracts.
Non-solicitation Clause - Customers
A non-solicitation of customers clause prohibits employees from soliciting their former employer’s customers after the termination of their employment contract. However, such a clause may be considered by the courts to be a non-compete clause. This is the case when the clause prevents an employee from continuing to work in the same field as the former employer.
The General Data Protection Regulation (GDPR), transposed into the French data protection law (Loi informatique et libertés), sets out employers’ obligations with regard to their employees’ personal data.
The GDPR and its French transposition apply to processing of personal data carried out as part of the activities of an establishment in France. This includes all processing of personal data in the context of French HR management, even by a company established outside the European Union.
The GDPR aims to protect personal data; ie, information relating to identified or identifiable individuals. An individual is identifiable if they can be identified directly or indirectly, including by reference to a name, social security number or factors specific to the individual’s identity (biometrics, address, etc).
Employers need to collect and process their employees’ personal data in order to perform the employment contract and are therefore considered as data controllers under the GDPR.
Such collection is, however, limited by law, and sensitive data cannot be collected unless allowed by a specific provision. Sensitive data includes data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or a natural person's sex life or sexual orientation, data relating to criminal convictions and offences or related security measures, and the social security number.
Thus, for all data processing, employers must do the following.
As data subjects under the GDPR, employees must be informed of data processing and its specific characteristics through an information notice. This information notice must provide a list of the individual’s rights (access, rectification, erasure, restriction, portability, right to object).
The personal data collected must not be retained for longer than necessary for the purpose for which it was collected.
Data controllers must also provide for the organisational and technical measures ensuring the security of data, to prevent any unlawful access, unavailability or change. This includes limiting access to the data for its own employees to those who actually need it.
Any personal data breach must be notified to the CNIL within 72 hours after the employer becomes aware of it, and to the data subject if the breach is likely to cause a high risk to the individual’s rights.
In the event of a breach of the above-mentioned obligations, the employer may be subject to litigation from an employee, a trade union or the CNIL. In addition to civil damages, the employer may be unable to rely in court on certain documents unlawfully processed. Lastly, the employer may be subject to an administrative fine, the maximum amount of which varies according to the provision violated, but may rise to EUR20 million or 4% of the total worldwide annual turnover, whichever is higher.
Further to the above-mentioned obligations, the French Labour Code (Articles L. 2312-38, L. 1221-8 and L. 1222-4) also provides that:
Failure to inform and/or consult a CSE may constitute a criminal offence punishable by a EUR7,500 fine for natural persons or EUR37,500 for legal persons. Failure to fulfil any of the above-mentioned obligations may make the documents unlawfully processed inadmissible in court.
Non-EU nationals cannot work without an appropriate work permit.
If the foreign worker resides in France, the company must check that their future employee has a valid work permit. To do so, at least two working days prior to the employee’s start date, they must send a verification inquiry to the public administration (the Prefecture). If there is no reply within two working days of receipt of their request, their obligation to ensure the existence of the work permit is considered to have been fulfilled and they may employ the foreign worker.
If the foreigner does not reside in France, the employer must apply to the labour administration (DIRECCTE) in order to obtain a work permit for its new employee. After obtaining the authorisation, the foreign worker must undergo a medical examination and the employer has to pay a fee to the immigration authorities.
The mandatory register of employees must mention the type and number of the work permit (or equivalent document) and a copy of it must be attached to the register.
Unions have legal personality and their exclusive aim is the study and the defence of the rights and interests of workers covered by their articles of association. They can bring legal actions before the courts and they are empowered to negotiate collective agreements if they are representative. Under the French Constitution, employees are free to adhere to a union of their choice.
As of 2016, around 11% of employees were members of unions in France. This percentage is higher in the public sector. Although the percentage is low compared to other European countries, there is extensive collective bargaining coverage: this reached 98.5% in 2013. This is due to the fact that a worker does not need to be a member of a union in order to benefit from the provisions of collective bargaining agreements.
Unions can organise themselves freely in all companies. A union branch can be constituted if the union has at least two members within the company and if it is representative within the company or at the industry or national level, or if the union meets the following criteria: it respects republican values, has independence, has been legally constituted for at least two years and its professional and geographical scope cover the company.
A union branch may hand out union leaflets, have a union office, post communications and hold branch meetings.
Certain prerogatives, such as the appointment of union representatives or negotiation of company agreements, are reserved to representative unions. A union needs to meet the following additional criteria to be considered representative:
The mandatory transitioning and regrouping of the previous employee representative bodies (ie, the Works Council (Comité d’Entreprise, or CE), the staff representatives (Délégués du Personnel) and the health, safety and working conditions committee (Comité d’Hygiène, de Sécurité et des Conditions de Travail, or CHSCT)) into the Social and Economic Committee (Comité Social et Économique) was scheduled to be completed by 31 December 2019.
The establishment of a Social and Economic Committee is mandatory in every company that has 11 or more employees over 12 consecutive months. A company can have a central CSE and a local CSE for each distinct establishment if the company has at least two distinct establishments and at least 50 employees. Members of the CSE are elected every four years. The number of members and the duties of the CSE depend on the number of employees.
CSE in a Company with Fewer Than 50 Employees
A CSE in a company with fewer than 50 employees does not have a legal personality. The CSE has one or two elected members (along with one or two substitutes who can only attend meetings in the absence of the titular member), depending on the number of employees.
In this situation, the CSE has the following duties:
The CSE must be consulted on redundancies and on numerous other matters, including health and safety, and redeployment of an employee declared unfit to work by the occupational physician.
CSE in an Establishment or Company with 50 or More Employees
A CSE in a company with 50 or more employees has legal personality. The CSE serves as a channel of communication that allows the collective interests of the employees to be heard and as a supervisory body that makes sure that their interests are taken into account in decisions concerning the company that will necessarily have an impact on the employees themselves. It is therefore informed and consulted on questions of organisation, management and general conduct of the company, such as:
A CSE in a company with 50 or more employees is chaired by the chief executive of the company (who can be assisted by three colleagues without the right to vote). It is also composed of staff representatives (the number of representatives and substitutes who attend meetings in their absence varies according to the size of the workforce) and representatives of representative unions (without the right to vote).
A CSE in a company with 300 or more employees must have a specific committee covering health, safety and working conditions.
An employer who does not set up a CSE risks a criminal penalty; ie, a fine of EUR7,500 and one year's imprisonment. An employer who prevents the CSE from carrying out its duties may be fined up to EUR7,500.
Collective bargaining agreements are useful for improving employees' rights, subjecting employers in the same business or industry to identical obligations and organising the running of a company. These agreements are signed at different levels, such as industry (ie, for a specific business sector), group, company or establishment level. Where the same issues may be covered by agreements at more than one level, the Labour Code provides instructions on their application.
An industry-wide agreement takes precedence over a company-level agreement in areas such as minimum wages or job evaluation schemes. They may also take precedence, by agreement, in other areas, such as bonuses for dangerous or unhealthy work. A company-level agreement takes precedence over an industry-wide agreement for all other issues.
A company-level agreement can be made binding by the Labour Code; ie, for a profit-sharing scheme. In addition, periodic collective bargaining is mandatory regarding wages and gender equality.
Negotiation of company-level agreements is subject to special conditions. It must take place with union representatives. However, there are specific rules for companies that do not have any union representatives, allowing an employer to negotiate and/or to conclude an agreement, depending on the number of employees, with elected members of the CSE or directly with employees. In companies with fewer than 11 employees, the employer may offer a draft agreement directly to the employees and a ⅔ majority of the staff must then approve the draft.
When a collective bargaining agreement is applicable, the employer must apply it and employees have the right to make claims in respect of their rights, and for damages, in the event of non-compliance with such agreements.
Fixed-term contracts can only be terminated prematurely in the case of serious misconduct, force majeure, incapacity for work certified by the occupational physician, or at the initiative of an employee who can justify employment on an indefinite-term contract.
For the majority of indefinite-term employment contracts, dismissals can rely on either individual grounds (licenciement pour motif personnel) or redundancy (licenciement pour motif économique). A dismissal can be backed by a number of reasons, facts and allegations. These should be sufficient to establish a real and serious cause. Prohibited grounds for dismissal include those that are discriminatory in relation to age or health. Employers must inform the dismissed employees of the grounds for their dismissal in dismissal letters. However, recent legislation allows an employer, where necessary, to notify the employee of dismissal in a letter and specify the reasons for dismissal within a maximum of 15 days from the letter. This may be on the initiative of either the employer or the employee.
Dismissal on Individual Grounds for Indefinite-Term Contracts
Dismissals on individual grounds are specific to the employee in question. They may or may not be for disciplinary reasons.
Disciplinary reasons for dismissals are:
Non-disciplinary reasons for dismissal are incompetence, prolonged sickness or repeated absences that interfere with the effective operation of the company leading to the necessity to replace the employee, or incapacity for work certified by the occupational physician.
Dismissals on Economic Grounds (Redundancies)
Redundancies relate to the circumstances of the company, not to the individual employee. They can be on three different scales:
Redundancies follow from economic difficulties, technological change, reorganisation necessary to safeguard competitiveness or company closures. They can result directly from the end of the need for a particular job or from changes to jobs or company structures. The employer can also dismiss an employee on economic grounds after a refusal to accept a change to an essential element in the employment contract.
A company with 50 or more employees planning to carry out a large-scale redundancy must prepare a redundancy plan (plan de sauvegarde de l’emploi, also known as a plan social), which is subject to validation or approval by DIRECCTE.
The notice period refers to the lapse of time between the sending of the dismissal letter to the employee and the date of the end of the employment contract. During this period, the employment remains effective and both parties continue to carry out their obligations by working and paying the salary.
An employee who has committed serious misconduct or gross negligence can be dismissed without notice; ie, the termination is immediate.
An employee whose notice period is waived on the initiative of the employer will receive a compensatory payment (indemnité compensatrice de préavis) in lieu of salary for the notice period.
Notice periods for dismissal differ depending on the sector of activity and are fixed by a branch collective bargaining agreement or by law. For most employees, the notice period is calculated based on seniority within the company. It is one month for those with six to 24 months' continuous employment and two months for those with at least 24 months.
Severance pay (indemnité de licenciement) is only applicable to indefinite-term employment contracts. All employees with more than eight months' uninterrupted seniority, except for those dismissed for serious misconduct or gross negligence, are entitled to severance pay. The notice period is taken into account for the calculation of seniority, whether it is worked or not. The amount of severance pay is calculated on the basis of gross monthly salary prior to the termination of employment.
The calculation is as follows:
Formulas fixed by collective bargaining agreements, contracts or general practice that are more advantageous for the employees are applicable.
Other than severance, dismissed employees are also entitled to other compensation, such as compensation for unused paid leave entitlement.
All dismissals must have a real and serious cause. The termination of an employment contract for serious misconduct or gross negligence is immediate, and the employee is deprived of the notice period and severance pay.
The distinction between dismissal for gross negligence and for serious misconduct is based on the intention to cause harm to the company or the employer. Moreover, gross negligence allows the employer to ask for compensation to repair the damage caused.
Termination of Employment Contract by Mutual Consent
In addition to dismissal and resignation, employers and employees can mutually agree to the termination of an employment contract (rupture conventionnelle). An enforceable settlement agreement (transaction) can be concluded after the termination of employment.
Termination of the employment contract by mutual consent has the advantage for the employee of compensation that is at least equivalent to the legal minimum of dismissal severance pay. The employer, on the other hand, is less at risk of future disputes compared to a non-consensual dismissal, provided that mutual consent was obtained in a lawful manner. The employer must not coerce the employee into signing a “mutual consent” termination agreement: consent obtained under such circumstances is defective and the termination agreement would be void. The employee should not force a termination agreement upon the employer either.
The following procedure must be respected:
Unlike an individual termination agreement, only the employer can propose a collective contractual termination agreement (rupture conventionnelle collective, or RCC). An RCC sets out the mutually agreed conditions of termination and is subject to validation by DIRECCTE.
An RCC is different from a voluntary departure plan (plan de départs volontaires) included in a redundancy plan in the case of large-scale redundancy. One difference is that there does not need to be an economic reason, unlike in the case of a redundancy plan, which must be justified on economic grounds, with this requirement also applicable to a voluntary departure plan.
A settlement agreement prevents the introduction or pursuit of legal actions between the parties in relation to the matters it covers. It is concluded after the finalisation of a termination of employment, and includes reciprocal concessions by the parties: one party, usually the employee, refrains from legal action, and the employer usually pays financial compensation. The financial compensation must be effective and appreciable, and should not be derisory compared to the concession made by the other party.
In France, some categories of employees benefit from protection against dismissal: employees who exercise representative functions, employees on sick leave due to a work accident, pregnant employees, etc. Levels of protection vary between the different groups and if protection is not observed, the dismissal is considered discriminatory, and null and void.
For an employee exercising representative functions, an authorisation from the Labour Inspectorate must be obtained for their dismissal. The lack of such authorisation will render the dismissal void and without effect, so allowing the employee to ask for reinstatement or compensation. Candidates for elections and former staff representatives also benefit from such protection.
Other protected employees cannot be dismissed unless their dismissal is justified by serious misconduct or if it is impossible to maintain the contract for reasons unrelated to the employee’s condition or reason for absence. However, some employees also benefit from absolute protection from dismissal. For instance, while on maternity leave, an employee cannot be dismissed even for serious misconduct or because it is impossible to maintain the contract.
In France, there are three types of claim for wrongful dismissal:
In all cases, the limitation period for a challenge to the grounds and/or procedure of a dismissal is 12 months after notification of dismissal.
Every dismissal must be well grounded; ie, rely on objective facts that can be evidenced.
The dismissal letter must detail the grounds for the dismissal. In the event of litigation, the employer cannot argue that the dismissal is grounded on facts that are not mentioned in the dismissal letter.
When the dismissal is deemed to be unfair, the employee may benefit from the payment of damages, depending on length of service within the company.
Null and Void Dismissal
Dismissal can be null and void in the following situations:
When a dismissal is null and void, the employee can choose whether to be reinstated. When reinstatement is impossible, the employee is granted damages. In all cases, the employee receives payment of salary from the date of the dismissal until the date it is declared null and void. In addition, when the employee is not reinstated, the employer is required to pay the employee damages amounting to at least six months of the average monthly salary.
Dismissal without Proper Procedure
Dismissal without proper procedure involves a failure to follow the required procedures, (such as the invitation to the dismissal meeting, the meeting itself and assistance by a person of choice during the dismissal meeting), even though the dismissal has a real and serious cause. The employee is entitled to compensation of a maximum of one month’s salary in this case. Such damages cannot be cumulated with damages for unfair dismissal.
Protection from discrimination benefits employees, interns and apprentices, as well as candidates for these positions. Discrimination can be direct or indirect. Direct discrimination refers to a situation where one individual is treated in a less favourable manner than another in a comparable situation because of a prohibited criterion, such as sexual orientation, religious beliefs or ethnic origin. Indirect discrimination occurs when a measure that appears neutral is detrimental to an individual because of a prohibited criterion.
The principle of equality of treatment, which revolves around the principle of “equal work, equal pay”, should not be confused with the principle of non-discrimination.
Grounds for Claims of Discrimination
Grounds for claims of discrimination may be related to ethnic origin, sex, sexual orientation, gender identity, age, marital status or pregnancy, genetic characteristics, a particular vulnerability resulting from the claimant’s economic situation, political opinions, religious convictions, physical appearance, family name, place of residence, state of health, or competence in a language other than French.
Grounds of discrimination may also relate to the lawful exercise of the right to strike, witnessing discrimination, serving as a juror or non-legal member of a tribunal, or refusal to be geographically relocated to a state that criminalises homosexuality.
Whistle-blowers who report or testify in good faith to actions constituting a criminal or other offence of which they become aware in the performance of their duties, or who raise an alert in relation to transparency, the fight against corruption or the modernisation of economic life, are also protected against discrimination.
Last but not least, those who have suffered from, refused to suffer from, witnessed or reported moral or sexual harassment are protected from discriminatory measures.
Burden of Proof
The employer and employee share the burden of proof. For both direct and indirect discrimination, the employee must present factual information that suggests the existence of discrimination. As the production of evidence can be more difficult in the case of indirect discrimination, statistics are often used to demonstrate that a measure that appears neutral has an unfavourable effect on a specific group.
For claims of discrimination in recruitment, lack of information is an obstacle to the establishment of a presumption of discrimination.
The rejected candidate is not entitled to have access to information indicating whether another candidate was recruited in their place. However, a refusal to give access to such information may be one of the factors to be considered in establishing a prima facie case of direct or indirect discrimination.
The employer can seek to demonstrate that the alleged existence of discrimination is not sufficiently established by the information provided by the employee. The employer can also justify the alleged discrimination by proving that differences in treatment do not arise from a prohibited discriminatory ground, but have an objective justification unrelated to discriminatory grounds.
The employer can also justify a discriminatory measure:
Award of Damages and Remedies
An employee suffering from discrimination can seek damages and remedies from a labour court and may also bring a complaint of discrimination against the employer under criminal angle. Since 2017, class actions (actions de groupe), which are a new feature in French law, may, under certain conditions, also be brought for discrimination against a single employer before a civil court.
Dismissal of an employee in breach of the principle of non-discrimination is null and void. Dismissal without real and serious cause of an employee as a reprisal for legal action brought by or on behalf of the employee on grounds of discrimination is also null and void.
A natural person found liable for discrimination may receive a sentence of three years' imprisonment and be fined EUR45,000. A legal person found liable for discrimination may be ordered to pay a fine of up to EUR225,000 and may be subject to other penalties.
Specialised Employment Forums
In France, a dispute in employment law leads, depending on its subject matter, to judgments or rulings by different types of court.
A dispute related to the employment contract (performance, termination, etc) or to an employee’s working conditions (harassment, discrimination, etc) is generally dealt with at the labour court. This is composed of elected lay judges. Appeals against decisions of a labour court may be made to the Court of Appeal, and subsequent appeals to the Court of Cassation.
A dispute related to elections (often between an employer and employee representatives) has to be brought before an ordinary civil court.
Disputes relating to decisions made by the labour administration are heard in the administrative courts. These decisions may, for instance, relate to the validity of a redundancy plan or an authorisation to terminate the employment contract of employees exercising representative functions.
Representative unions can initiate class actions for the benefit of employees working for the same employer. However, these claims are limited to discrimination and data privacy.
Representation in Court
Legal representation is not mandatory before a labour court. The parties can bring and take part in proceedings without representation. A qualified person – such as another employee from the same company or business sector, a registered union defendant, an attorney, a person with whom a claimant is living as a couple, or the mother, father or legal representative in the case of a minor – can represent absent parties. In some cases, the labour court can adjudicate on the dispute on the sole basis of evidence if a party is absent or not represented. However, before the Court of Appeal or the Court of Cassation, the presence of an attorney is mandatory.
Although arbitration is flourishing in Paris, there is no provision in France for arbitration on individual employment matters. Arbitration clauses in employment contracts are unenforceable as the labour court has exclusive jurisdiction over employment contracts.
However, arbitration is possible for conflicts arising from collective issues. Collective bargaining agreements can provide for arbitration procedures and establish a list of arbitrators agreed upon by the parties. In the absence of such an arbitration clause, the parties can still reach an agreement to resolve a conflict through arbitration instead of mediation or conciliation.
The prevailing party can be awarded attorney’s fees paid by the other party at the amount determined by the judge. If the prevailing party benefits from legal aid, the payment is made to the lawyer of the beneficiary. The amount determined by the judge must take account of equity and the economic situation of the unsuccessful party, and the court may even waive the award of attorney's fees.
In the last few years, employment law in France has been characterised by the desire for more flexible restructuring mechanisms, a decrease in litigation and greater consideration of personal data protection rules. In addition, in recent months, it has been necessary to take account of the COVID-19 pandemic, especially when considering employees' health and safety.
Evolution of the Restructuring Process
Since the revolutionary changes to legal requirements for redundancy plans in 2013, the legal framework for restructuring has continued to evolve and its strategic importance to the French economy is greater now than it has ever been. So far, in the course of 2020, at least 267 large-scale redundancy plans (representing over 43,000 projected job cuts) and 2,023 smaller plans have been registered with the authorities. The rise in the number of plans has been accelerating rapidly since the end of lockdown. Some sectors that were already in jeopardy prior to the COVID-19 crisis have found restructuring to be an even more pressing necessity.
It now seems fair to consider that these developments have led to an improved balance between (i) flexibility and (ii) control.
The rules on plans for compulsory redundancies, including for just a couple of employees as well as for large groups, have changed very little since 2013. However, the legislator has found other ways to be creative.
A new tool to reduce workforce
Employers in France currently have a range of ways to adjust their workforce, even without having to resort to compulsory redundancies. They may implement a classic voluntary departure plan as the first step in a redundancy plan (the plan de sauvegarde d’emploi, usually known as plan social) or enter into an agreement with the unions providing that employees can leave the company (the rupture conventionnelle collective, or RCC). The RCC allows the employer both to lower the costs of departures, as the legal minima are much lower than in a redundancy plan, and to limit the risks of litigation by either the employee representatives or the employees themselves. Last but not least, employers do not need to inform and consult their works councils about an RCC and therefore no expert is appointed by the staff representatives. In short, the process is smoother and less costly than a redundancy plan. The only issue is that this mechanism cannot be implemented without the approval of the majority of the company’s unions.
A new tool for amending employment contracts
Employers in France can also resort to collective performance agreements (accords collectifs de performance, or APC), which can alleviate difficulties they may be experiencing by introducing flexibility and adaptations corresponding to the needs of the business. An APC can be used to adapt working hours, organisation and distribution methods, and remuneration (while respecting the minimum wage) and/or determine the conditions of professional or geographical mobility within the company.
The APC is a one-stop shop for contract changes by employers, as they no longer need to acquire the individual consent of each employee and can dismiss employees based on their refusal of the APC.
The implementation of the APC is also quite flexible. Unlike redundancies, which require specific criteria on the economic situation of the company to be met, it can be entered into to meet immediate needs or prepare for the long-term reorganisation of the company.
... still controlled by the labour administration
It should be noted that, as a general principle, the labour administration always has the ability to control the restructuring process, irrespective of the methods adopted. Also, the more employees are affected by termination of employment and/or contract variation, the greater the control exercised by the administration.
However, in practice, the administration is only likely to exercise strong control over large-scale redundancy plans. In some cases, this can lead to litigation between the employer and the administration.
The administration can control both the scope and level of the social measures in the plan and the way the procedure has been implemented. If an employer misses an important point of procedure, such as requesting a formal opinion from the Social and Economic Committee, or fails to align the social measures with the financial means of the group to which the employer belongs, the labour administration can refuse to authorise implementation of the redundancy plan.
Unlike plans for large-scale redundancies, the labour administration exercises only light-touch control over other restructuring tools.
Trends in Labour Disputes: A Reduction in Litigation but an Increase in Risks
France conveys the image that employees can easily bring multiple lawsuits against their employers and obtain significant compensation from the courts. However, this image is only partly accurate.
The number of lawsuits has fallen by 40.72% in ten years
The latest Ministry of Labour statistics, for the period 2008–18, show that the number of lawsuits decreased by 40.72% (202,103 lawsuits in 2008 against 119,801 in 2018). In other words, in 2018 only 0.47% of the 25.4 million French employees initiated a lawsuit.
This reduction is due, in particular, to five laws.
The reduction in lawsuits is also partly explained by the length of the procedure before the labour court rules on a case. In 2018, the average time taken was 16.8 months (compared to 12.7 months in 2009).
The remaining lawsuits are complex and potentially expensive
In 2020, employees who sue their employer have either (i) strong support from their union and/or (ii) a claim that is not subject to the cap on damages for unfair dismissal (lack of protection against COVID-19, moral harassment, sexual harassment, unfair treatment, discrimination, etc).
One of the most frequent – and costly – claims concerns the payment of overtime.
From 2004 until recently, employers benefitted from a significant advantage in this type of litigation: as long as the employee did not provide prima facie evidence regarding the existence of overtime, the employer was not compelled to provide proof of hours worked.
On 18 March 2020, the Court of Cassation (the highest French court) moved back from this position and rebalanced the burden of proof. From now on, if the prima facie evidence provided by the employee is sufficiently detailed, though not necessarily with probative value, the employer must provide evidence from monitoring of working hours. However, due to case law dating from 2004 that was favourable to them, employers have lost the habit of keeping such evidence.
HR policies will need to change to limit companies’ exposure before the labour courts in the light of the Court of Cassation’s new position.
Employees’ Right to Privacy: Rise in Complaints, in Particular Relating to Video Surveillance Systems
Complaints to the French Data Protection Agency (Commission Nationale de l’Informatique et des Libertés, well known under the initialism CNIL) by data subjects about the use of their personal data have been increasing: 14,137 complaints were submitted to the CNIL in 2019 (ie, an increase of 27% compared to 2018 and of 79% over the last five years).
The increase reflects the fact that employee data has become a hot topic over the last two years in France, in particular since the entry into force of the General Data Protection Regulation (GDPR). Before the GDPR, the French data protection law of 6 January 1978 already regulated the collection and processing of this type of data. However, there has been a noticeable reinforcement of the protection granted to employees in the workplace in terms of data privacy, especially regarding the use of videos. This is among the issues giving rise to a range of questions and complaints from employees to the CNIL.
Over recent years, several companies have been sanctioned by the CNIL for taking measures that could disproportionately infringe on the privacy of employees. It is noteworthy that the French Labour Code provides that "no one may place restrictions on the rights of individuals and individual and collective freedoms that are not justified by the nature of the task to be performed or proportionate to the goal sought".
Consequently, employees have a right to privacy even at the workplace and during working time. It follows that while surveillance cameras may be legitimate to ensure the safety of goods and people at the workplace, they cannot lead to placing employees under constant surveillance.
This principle has the effect that certain company locations, such as rest areas and premises set aside for employee representatives, cannot be monitored by a camera and, except in very specific circumstances, cameras cannot film employees at their workstation.
According to data privacy law, before installing cameras on their premises, employers must define a purpose, which must be legal and legitimate (ie, to ensure security of property and persons or identify thieves or aggressors). This means that cameras may generally only be installed at the entrances and exits of buildings and where merchandise or valuable goods are stored.
Furthermore, the access to the images recorded should be secured and restricted to certain types of employees, such as security guards, to prevent others from viewing them.
Moreover, according to Article 13 of the GDPR, employees and visitors must be informed of the purposes of the data processing, its legal basis, the recipients of the data, the duration of storage of the images (never more than one month), the contact details of the data protection officer, if any, and their privacy rights under the GDPR (rights of access to and rectification or erasure of personal data or restriction of processing, and the possibility of lodging a complaint with the CNIL, etc).
Among the various additional steps that French employers should take when installing a video protection system in the workplace, it should be noted that they generally have an obligation to conduct a data privacy impact assessment and consult employee representative bodies before installing the cameras.
There has been a new twist in the development of video surveillance in the context of the COVID-19 pandemic, with employers keen to deploy thermal cameras to prevent contamination at the workplace.
However, the CNIL has issued reminders in a number of recent press releases that, as the law stands and unless a new law is introduced expressly providing for the possibility, employers are prohibited from creating files containing temperature data on their employees and are prohibited from setting up automatic temperature recording tools such as thermal cameras.
The Health and Safety of Employees in the COVID-19 Era
The year 2020 has, of course, been marked in France and around the world by the COVID-19 pandemic and its repercussions on employers' obligations in terms of employees’ health and safety.
While legally in France the employer "must take the necessary measures to ensure the safety and physical and mental health of workers (these measures include actions to prevent occupational risks, information and training, the establishment of an organisation and appropriate means)" and must ensure that "these measures are adapted to take into account changing circumstances and aim to improve existing situations", the crisis has made it possible to accelerate review of these obligations.
Identification of risk factors by the employer
It has always been the employer’s responsibility to detect the particular risks faced by employees, and decide on appropriate prevention measures based on the assessment of these risks, after either information to or consultation of employee representatives and the occupational physician.
COVID-19 has made it necessary to apply this precautionary principle through safety protocols adapted to each type of business activity (wholesale distribution, manufacturing industry, head offices, etc). During the lockdown period, French courts have had to assess whether, in implementing these safety measures, French employers took sufficient account of the risks to which they were exposing their employees.
This has given rise to some remarkable decisions by the courts, requiring employers to restrict their activities when adequate safety measures had not been implemented.
The courts have also confirmed that some professional staff, such as health professionals, regularly exposed to the risk of contamination by the virus due to the nature of their usual activity are exposed to a biological risk that increases employers’ safety obligations.
The employer's civil liability
The principle of employer liability for failure to comply with the obligation to prevent occupational risks may result in the company being held liable. In France, the financial consequences of occupational accidents or illnesses include additional social security charges (the occupational accident contribution), and damages in the event of inexcusable fault.
Employers already had to measure levels of exposure to risk (detailed evaluation of the nature of employees' activity and implementation of barrier measures). As a result of the COVID-19 crisis, employers have had to face reinforced requirements to regularly update assessments of these risks. They have also had to take account of rapidly changing and complex government instructions.
The criminal liability of the employer
It is sometimes difficult for foreign investors to understand that the head of the company or the legal representative will be held liable in the event of breaches of occupational health and safety law and danger to life. In addition, the courts will establish whether there is personal fault on the part of the employer; ie, whether the employer participated personally in the commission of the violation of the law or was indirectly responsible for it through lack of vigilance in the chain of command.
However, most employers have been scrupulous in making protective equipment available to their employees, training them and implementing return-to-work plans. Consequently, there have so far been few cases of criminal prosecution of employers related to COVID-19.