For this month of October, we have selected, on the one hand, two case laws centered on the distinction between the personal life and private life of the employee (a distinction which often informs the case law of the social chamber of the Court of Cassation) and, On the other hand, some case law judgments chosen around more varied themes such as salary catch-up following maternity leave, control of the employee's working hours, the employee's change of employer and finally, the limitation periods for actions regarding the non-competition clause.
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Personal life and private life of the employee
What to remember
A reason taken from the employee's personal life cannot justify disciplinary dismissal, unless it constitutes a failure by the person concerned to fulfill an obligation arising from their employment contract.
Cass.soc. n°22-20.672, September 25, 2024
The detailed case
An employee is checked, after his working day, on the public highway, in his vehicle in possession of a bag containing cannabis. Warned by the judicial police, the employer dismisses the employee for serious misconduct.
The bus driver contests his dismissal.
The Court of Appeal declares the dismissal null and void due to the infringement of the employee's fundamental right to his private life, and his reinstatement within the company.
Seized in cassation, the Court of Cassation overturns the appeal judgment and judges the dismissal not null, but without real and serious cause. Indeed, on the one hand, the reason for the sanction is taken from the personal life of the employee, but not from the intimacy of his private life: the alleged acts occurred on the public highway and no fundamental freedom was granted. been violated, the dismissal cannot therefore be nullified. On the other hand, the facts do not constitute a failure by the employee to fulfill an obligation arising from his employment contract. The dismissal therefore lacks real and serious cause.
What to remember
Dismissal based on a reason relating to the intimacy of private life alone entails the nullity of the dismissal.
Cass. Soc.September 25, 2024, n°23-11.860
The detailed case
An employee, dismissed for serious misconduct, in particular, due to the content of remarks exchanged during a private conversation with three other people by professional messaging, in a strictly private context unrelated to professional activity, refers the matter to the industrial tribunal. .
The appeal judges declared the dismissal void and ordered the employer to pay the employee various sums including conventional severance pay, compensation for void dismissal and damages.
Seized in cassation, the Court of Cassation confirms the appeal judgment. It recalls that the employee has the right, in his workplace, to respect for the privacy of his private life, which includes the secrecy of correspondence. The employer cannot therefore, without violating this fundamental freedom of the employee, use the content of personal messages sent by the employee and received by him using an IT tool made available to him for his work, to sanction him.
Furthermore, this private conversation was not intended to be made public and did not constitute a breach by the employee of the obligations arising from the employment contract.
This dismissal, pronounced for disciplinary reasons, is therefore unjustified and is void as infringing the right to respect for the privacy of the employee's private life.
The two judgments above allow the social chamber of the Court of Cassation to recall the following principles:
- A distinction must be made between the employee's personal life and private life. Facts relating to the employee's personal life do not necessarily relate to the privacy of his private life.
- The right to respect for private life is a fundamental freedom whose violation is punishable by nullity. A dismissal based on a reason relating to the employee's private life therefore infringes a fundamental freedom of the employee and, for this reason alone, is void.
- A dismissal based on a reason taken from the employee's personal life cannot be declared null and void.
- A reason taken from the employee's personal life cannot, in principle, justify a disciplinary dismissal, unless it constitutes a failure by the person concerned to fulfill an obligation arising from their employment contract.
Maternity leave
What to remember
A salary catch-up following a change in employee remuneration is not due for the period of maternity leave, during which the employment contract is suspended.
Cass.soc. n°23-11.582, October 2, 2024
The detailed case
Following the termination of her employment contract following her adhesion to a professional security contract, an employee seized the industrial tribunal with requests for payment of back pay, compensation for concealed work and damages for having been forced to work during her maternity leave and having been deprived, during the duration of her maternity leave, of the benefit of a salary increase granted to all employees.
The employee's requests were dismissed and she appealed to the Court of Cassation.
One of the questions asked to the Court of Cassation is the following: should the salary catch-up of an employee on maternity leave be done during or after maternity leave?
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The Court of Cassation confirms the appeal judgment and clarifies two points: under the terms of article L. 1225-4 of the Labor Code, the employment contract is suspended during maternity leave; under the terms of article L. 1225-26 of the Labor Code, the remuneration of an employee on maternity leave is increased, following this leave, by the general and individual increases received during the duration of this leave by the employees belonging to the same professional category. Therefore, unless there is a more favorable collective agreement, these increases are not due for the period of maternity leave, during which the employment contract is suspended. The employer is only required to pay them at the end of this leave and for the period following it.
Concerning the fact that the employee was forced to work during her maternity leave, the Court of Cassation recalls that the execution of work on behalf of the employer during periods during which the employment contract is suspended , engages the liability of the employer (article 1231-1 of the Civil Code). Violation by the employer of the ban on employing an employee to work during maternity leave is punishable by the award of damages to compensate for the loss suffered.
Duration of work
What to remember
Geolocation to ensure control of working hours is only lawful when this control cannot be done by any other means.
Cass.soc.n°22-22.851, September 25, 2024
The detailed case
An employee, a traveling newspaper distributor, is subject to a system for controlling the duration of his working time.
The Court of Appeal holds that the system can validly be put in place by the employer, since it appears to be the only possible means.
The Court of Cassation overturns the judgment of the Court of Appeal. It recalls that a geolocation device infringes on the privacy of employees, that it is not justified when the employee has freedom in the organization of their work and that it is only lawful when this control cannot be done by any other means, even less effective.
In the present case, the Court of Appeal had not characterized either the absence of freedom which the employee had for the organization of his work or that the control of working hours could not be carried out by another means.
Inter-company transfer of an employee
What to remember
An employee cannot be forced to accept a change of employer, and a refusal on his part cannot justify dismissal.
Cass.soc. n°23-10.326, September 4, 2024
The detailed case
An employee is offered a transfer to another entity within the same group. Following her refusal, she was fired.
Referral to cassation, The Court of Cassation recalls on the one hand, the principle according to which the change of employer, in a group of legally distinct companies, cannot be done without the explicit agreement of the employee.
On the other hand, it confirms that the employee's refusal to be transferred does not constitute a legitimate reason for dismissal and renders the dismissal without real and serious cause.
On the same theme, the Court of Cassation ruled, in a judgment of September 25, 2024, No. 23-15.220, that the transfer of the employment contract of an employee from one company to another, except in the case where this transfer occurs within the framework of article L 1224-1 of the Labor Code, namely the case of the legal transfer of the employment contract following a legal modification by the employer such as a sale of the The entity, a succession, a merger, etc., constitutes a modification of this contract. This transfer cannot therefore take place without the express agreement of the employee, which cannot result from the sole continuation of work.
Non-competition clauses: limitation periods for actions taken by the employee
Cass.soc. n°23-12.844, October 2, 2024
The detailed case
An employee is subject to a non-competition clause for a period of three years. Following his resignation, the employee contested the legality of the non-competition and non-solicitation of customers clauses present in his contract and the fact that they did not give rise to the payment of financial compensation. Three years after the termination of his employment contract, the employee seized the industrial tribunal with a request for payment of damages for the stipulation of an unlawful non-competition clause and for non-compliance with the financial compensation. of the non-competition clause. The industrial tribunal as well as the Court of Appeal consider his requests time-barred.
The employee appeals to the Court of Cassation.
The question which arises before the Court of Cassation is that of the limitation periods for the claim for payment of damages for the illegality of the non-competition clause on the one hand, and for the damages due for non-competition compliance with the non-competition clause, on the other hand.
This judgment gives the Court of Cassation the opportunity to clarify several points:
- The legality of a non-competition clause relates to the execution of the employment contract, and, as such, is prescribed by two years from the day on which the person exercising it knew or should have known the facts. which allow him to exercise his rights.
- When this clause is triggered due to the termination of the employment contract, the two-year period runs from the implementation of the cause, that is to say from the termination of the employment contract.
- The financial compensation for the non-competition obligation is in the nature of salary compensation and, as such, follows the prescriptive salary regime. This compensation is therefore prescribed three years from the day on which the employee knew or should have known the facts allowing action to be taken.
In this case, only the sums due in respect of the financial compensation for the unpaid non-competition clause can be claimed within the period of three years after the termination of the employment contract.
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