In the past 12 months, the main changes in French employment law were the following.
Waves of lockdowns and re-openings marked the past 12 months, forcing the government to adapt laws and measures according to these events.
The second lockdown took place on 30 October 2020, but its measures were moderate compared to the first one, as the majority of businesses were allowed to stay open, except for places open to the public.
The vaccination campaign, which began in France in December 2020 and which intensified at the beginning of 2021, has accelerated the "return to normal" process.
Despite this campaign, the third wave of COVID-19 affected France at the beginning of 2021 due to the emergence of numerous virus variants, making the return to a pre-COVID state impossible.
The uncertainty led policymakers to adapt the applicable regulations with these hardly predictable changes.
As of June 2021, the following decisions have been set.
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 compensation, severance pay and probationary periods.
Indefinite-term employment contracts are standard. The contract does not 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 days.
Senior managers (cadres dirigeants) are not subject to the legal provisions on working hours. However, the highest French court (the Court of Cassation) 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 (eg, students). 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 EUR10.25 per hour in 2021 or EUR1,554.58 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 previous three months.
Fathers are entitled to paternity leave of 25 consecutive days (28 days for multiple births). For compensation to be paid from the social security funds, the leave must begin within the six 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 16 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 essential for senior managers, especially with regard to data 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 them.
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-poaching 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 the 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.
However, such collection is 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.
Nationals of the member states of the European Union and the European Economic Area do not need a work permit in order to work in France. The employer simply needs to check that they have a valid national identity card or passport.
Non-EU nationals cannot work without an appropriate work permit.
In the case of hiring a non-EU national residing in France, the employer must verify that the foreigner has a title that authorises them to carry out a salaried activity in France (or within EU countries, as the case may be). To check the authenticity of the work permit, the employer must send to the prefect of the department of the place of employment a registered letter with acknowledgement of receipt, or an email, including a copy of the document produced by the foreigner, at least two working days before the effective date of hiring. In the absence of a reply within two working days as from the receipt of the request, the obligation to ensure the existence of the work permit is deemed fulfilled.
If the foreigner does not reside in France, the employer must apply to the labour administration (DREETS) 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:
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 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 separate 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.
A 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.
A 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 two-thirds 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 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.
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.
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 DREETS.
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 an 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 only on claims regarding the performance of the employment contract.
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 observed:
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 DREETS.
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 claims 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 the notification of dismissal.
Any dismissal must be grounded on a real and serious cause:
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
A dismissal is deemed null and void in particular in the following situations:
When a dismissal is declared null and void by judges, the employee has the option to be reinstated. Whenever the reinstatement is impossible or if the employee does not wish to be reinstated, the latter is entitled to be granted damages. In all cases, the employee shall receive 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
A dismissal is irregular as long as the employer has not observed the specific dismissal process as provided by the French Labour Code (ie, sending an invitation to the dismissal meeting, the organisation of a dismissal meeting, mention of the possibility for the employee to be assisted during the meeting, etc), even though the dismissal is grounded on a real and serious cause. The employee is entitled to an indemnity at most equal to one month's salary. Such indemnity 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 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.
In the same way, those who have suffered from, refused to suffer from, witnessed or reported moral or sexual harassment are protected from discriminatory measures.
Supporting/Defending a Claim of Discrimination
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 and the employer must then demonstrate that the potential differential treatment, if any, is justified by objective factors unrelated to any 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:
An employee suffering from discrimination can seek damages and remedies from a labour court and may also file a criminal complaint against the employer. The discriminated employee is also entitled to terminate their contract of employment because of the misconduct of the employer (prise d'acte), which may be qualified by the judges as a null and void dismissal, with all the consequences that this entails.
Since 2017, class actions (actions de groupe) 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 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 be condemned to three years' imprisonment and a fine of up to 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 courts.
A dispute related to the employment contract (performance, termination, etc) or to an employee's working conditions (harassment, discrimination, etc) is generally dealt with before the competent labour court. Courts are composed of elected lay judges. Appeals against decisions of a labour court may be lodged to the appeal courts, and the latter's decision may be appealed to the Court of Cassation.
Disputes relating to employee representative bodies' elections or arising from the application of social security law have to be brought before an ordinary civil court.
Disputes relating to decisions made by the labour administration fall under the jurisdiction of 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 by an attorney. 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 labour courts have exclusive jurisdiction over disputes relating to 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 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 directly 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.
From Remote Work to Flexible Work: Legal Considerations for Employers
The total and partial lockdowns due to the COVID-19 pandemic, which shifted trends in remote working arrangements, have been the most apparent impact of COVID-19 on employers. Before the pandemic, only 3% of employees in France worked from home more than once per week, compared to approximately 30% today.
As a result, companies were required to quickly reshape their work arrangements and organisations to ensure business continuity and maintain their work cultures.
Employers and policymakers acknowledged that the increasing use of a remote-working model would improve the work-life balance and be more environmentally friendly.
Workers who work remotely pursuant to remote-work charters and agreements, national interprofessional arrangements and right to disconnect laws may also have collective bargaining agreements that allow them to work remotely.
To anticipate the risks of remote work, employers may want to anticipate employees' feelings of isolation resulting from fewer opportunities to have interactions with colleagues, and the potential lack of ergonomic workstations or adequate workspace at home. As a result, employees may struggle to set up the appropriate working processes, provide efficient equipment and training to their staff, and maintain cohesion within their teams.
Another major challenge with employees working remotely is meeting employees' requirements and preferences regarding convenient and flexible working conditions regarding timing. Almost 80% of remote workers require more flexibility from their employers.
This rising trend may conflict with the French Labour Code provisions and the National Interprofessional Agreement of November 2020 on "time and place of work", potentially making these issues challenging to identify.
These discrepancies raise multiple concerns.
The legislature recently examined the feasibility of adjusting the existing legislation or imposing regulations specifically for remote workers to enable companies to control the risks resulting from these new operating business models while meeting employee needs.
Vaccination and the Workplace: an Employer’s Guide to Dos and Don’ts in Terms of Vaccination
The spread of COVID-19 vaccination has had employers across the globe wondering to what extent they can request their employees to be vaccinated or whether they can require employees to show proof of vaccination, among other concerns.
The meeting of French employment law and French medical rules (particularly the principle of doctor-patient confidentiality) has limited employers’ room for manoeuvre in this respect.
Under French law, an employer cannot force its employees to be vaccinated if the vaccination does not result from a legal obligation.
Under current law, children who were born after 1 January 2018 must prove that they were vaccinated with 11 different vaccines to have access to facilities or institutions such as schools and childcare centres.
There are also some cases of mandatory vaccination in a professional context. For example, some vaccines are required for employees working in a public or private establishment of preventative healthcare or housing of the elderly. This obligation concerns vaccines against Hepatitis B, Diphtheria, Tetanus and Poliomyelitis.
The French government decided in summer 2021 that vaccination against COVID-19 is mandatory for all health workers.
In work settings where vaccination is required, employers may suspend employees who refuse to be vaccinated. The French Court of Cassation ruled so in a case in which a funeral home employee refused to be vaccinated against Hepatitis B, claiming that this vaccine could expose him to severe disease (Cass. soc., 11 July 2012, No 10-27.888).
Regarding COVID-19 and the mandatory vaccination of health workers, the government first announced that employees would not be paid if they could not show proof of immunisation, but dismissals could be expected in the case of an employee refusing to be vaccinated in the long run.
What about the case where vaccination is not mandatory by law but is highly recommended?
Such a question could be asked in relation to COVID-19 as the French government, at the beginning of the vaccination campaign, had announced that it would not make the COVID-19 vaccine mandatory for the entire population.
Employers that cannot require their employees to be vaccinated because there is no legal obligation can still encourage employees to do so. In this respect, occupational doctors or occupational health nurses can vaccinate employees against COVID-19 as part of the workplace health services.
Employers in France and elsewhere are also concerned about the legal implications of granting specific benefits to employees against proof of vaccination. In France, rewarding an employee for being vaccinated would be considered to be discrimination based on health. Furthermore, this question poses practical difficulties since employees are not obliged to disclose to their employees whether they have been vaccinated or not since the vaccination is not mandatory and this information can be linked to the employee’s right to privacy. In this respect, the European Union’s General Data Protection Regulation (GDPR), and in particular its Article 9, providing for the rules applicable to sensitive data (which includes health data), strictly limits the cases when an employer can process such data.
However, these principles were challenged by the coming into force of the “health Pass” (pass sanitaire) during summer 2021. The pass sanitaire is a QR code showing that its holder either is vaccinated, has a negative COVID-19 test, or has recently recovered from COVID-19.
As of July 2021, only holders of a pass sanitaire are permitted to access places of entertainment or culture where there are gatherings of 50 or more people. As of 1 August 2021, only holders of a pass sanitaire are permitted to access restaurants, cafes, shopping malls, health establishments, trains and flights.
Similar requirements apply to employees working within these establishments. From 30 August 2021, employees who cannot show that they have a valid pass sanitaire will no longer be able to work on an employer’s worksite.
As such, a special unpaid work suspension case has been created in order to give time to the employees to regulate their COVID vaccination situation. The French government allows employers to put employees who lack a pass sanitaire on an unpaid two-month period of work suspension to obtain a pass.
As a result, this newly implemented pass sanitaire may constitute a roundabout way to enforce mandatory vaccination.
Pay Equality in France: Ongoing Evolutions in France
A wage gap has remained between men and women (16.8% in private companies) despite numerous acts providing obligations regarding gender equality and especially the commitment of implementing a gender equality plan, the absence of which is sanctioned by a fine that can be up to 1% of the global gross payroll of the company.
Inspired by its European neighbours, France took a new turn on the issue in 2018. Since then, companies with 50 or more employees have been expected to perform self-evaluations every year based on five indicators (the second and third indicators are used in conjunction for companies that have between 50 and 250 employees):
The maximum score an employer can reach based on the five indicators is 100. Employers failing to reach a minimum score of 75% are expected to negotiate with unions, or determine unilaterally an action plan aiming to resolve the inequality. Within three years, covered employers will be required to reach a global score above 75%. Failure to reach that goal may result in a fine of up to 1% of a company’s global gross payroll.
The outcome of the index must be published, and employers must communicate the score of each indicator, the global score and all information concerning the calculation method to the works council (comité social et économique) and to the labour authorities.
Employers must also communicate thereupon on their websites. In this regard, the website communication requirements have been broadened by a 2021 decree. Whereas companies were initially only expected to communicate yearly on the global score, they are now expected to communicate also on the score of each indicator and on the measures considered. Furthermore, the government has added that such website communications must be “visible and legible”.
In 2021, the government also started publishing on its website the scores obtained by all companies that have more than 250 employees over the past three years. Transparency of companies on their gender equality policies, including pay, is thus increasingly expected.
A further outlook on prospective legislation confirms this. Indeed, a bill is currently being voted on by the French Parliament that aims at raising gender representation within senior management for companies that have more than 1,000 employees. Companies would be expected to have 30% of their most senior positions held by women within five years and at least 40% within eight years. A company’s failure to comply would be sanctioned by an administrative fine of up to 1% of the company’s global gross payroll. The legislature is duplicating a successful measure that has been implemented for ten years to boards of directors of companies, under which women must hold at least 40% of board seats.
Lastly, given the outcome of a measure such as a gender pay equality index, the legislature is also thinking about a similar mechanism to improve the presence of elderly employees, having in mind a postponement of the minimum retirement age. Therefore, an index aiming at verifying the work conditions of elderly employees is contemplated, even though this project seems to have been postponed due to the COVID-19 crisis.
A February 2017 order on collective agreements confirms that the laws applicable to public service employees align with private sector employees subject to the French Labour Code. This order blurred the distinction between the public and private sphere, bringing positive outcomes in the future.
Is Bargaining within the Public Sector Law a Novelty?
The presence of private sector contractual workers in public administration increased in the past 20 years. On 5 July 2010, after the 2008 Bercy agreements renewing social dialogue, private sector laws had taken precedence over public sector laws.
The intent of the law was to provide a legal framework for unnamed collective bargaining practices within the three branches of government. After 2010, all matters relating to employees' professional and social lives were potentially negotiable.
Nonetheless, any agreement resulting from these negotiations had no binding legal value, in contrast with the 17 February 2021 ordinance.
The new aspect of the law is that now negotiations can lead to enforceable agreements, apart from exceptions allowing the administrative or territorial authority to hold off on their application within the conditions set out in the regulations in the event of extraordinary circumstances.
Can Employers Expect a Trend towards Increased Negotiations?
The authority competent to sign the agreement is also authorised to undertake the regulatory measures that the agreement includes, if needed, or to act on the specific measures that it stipulates.
The law sets out the representativeness rules of the signatory trade unions and the criteria for concluding agreements depending on the results of the vote of professional elections.
Therefore, long-awaited decrees will specify how agreements could be modified and revised, thereby interpreting components of the French Labour Code into public sector regulations.
These modern methods, which include innovative resources, may inspire strategic arbitration or even contribute to experimentation.
Which topics may be the subject matter of agreements that have normative authority?
In addition to the eight topics officially covered by collective bargaining in the public sector by the 2010 law, the ordinance of 17 February 2021 includes the following subjects as matters for negotiation:
Assuming that the negotiated agreements cover these themes as well as the eight other ones derived from the 5 July 2010 law, they are legally binding.
The 5 July 2010 law is binding on employers. One might conclude that the legally binding character of the February 21st ordinance will contribute to its success. Trade union organisations and the administration may want to prepare for the disputes that will arise from these laws, which may well herald a profound change in the civil service regulations.