Actance Tribune
What's NEW under French Employment Law?
N° 13 – February 6, 2023
Pension reform in France
On January 10, 2023, the government unveiled the content of the pension reform project. The project was presented on January 23 to the Ministerial Council and is to be discussed in Parliament in the first quarter of 2023, and is scheduled to be passed by March 2023.
Should the project be passed, the reform would come into force by 2030. Nevertheless, it is expected that the initial measures will begin to apply as early as September 2023.
Raising the retirement age
Currently, the legal retirement age in France is 62 for insured individuals born after January 1, 1955 (SSC. art. L. 161-17-2). For insured persons born before this, the retirement age depends on the year they were born (SSC. art. D. 161-2-1-9).
The reform project aims for a gradual increase in the minimum retirement age. Thus, from September 1, 2023, the legal age from which it will be possible to retire will be progressively raised at the rate of 3 months per year of birth. It would be 63 years and 3 months in 2027 at the end of Emmanuel Macron’s five-year term, to then reach the target of 64 years from 2030.
Let us recall that the legal retirement age (currently 62) entitles individuals to a retirement pension. It differs from the age for automatically benefiting from full-rate retirement, that is to say without a discount (67 years), which would remain unchanged. The contribution period to benefit from the full-rate pension is currently set at 43 years (172 quarters) for people born on or after January 1, 1973 shall also continue to apply however, according to an accelerated schedule compared to the previous reform.
Exceptions for certain insured persons (long careers, hardship, disability, etc.)
The automatic full-rate retirement age will be 62 for people with disability or inability. It will remain at 55 for disabled workers. Employees who have suffered an accident at work or an occupational illness resulting in permanent disability may retire at 62 under certain conditions.
The reform shall also consider long careers to prevent people who started working at an early age from being forced to work for over 44 years.
Moreover, reinforced medical monitoring is to be established for employees working in jobs identified as exposing them to hardship, in order to ensure preventive actions and better detect disability situations allowing early retirement at 62.
Other measures provided for by the reform
- Increase in the minimum pension: the retirement pension for a career fully contributed according to the minimum wage cannot be less than 85% of the net minimum wage, that is, €1,200 gross/month;
- End of special schemes: the reform aims to put an end to the main special pension schemes (RATP, electricity and gas industries, Banque de France, EDF, etc.);
- Measures in favour of the employment of elderly people: there is a plan to ensure that companies are obliged to publish an elderly employee index, to establish a universal time savings account and to relax the progressive retirement plan.
More information
The official Vie publique site gives details of the pension reform project, which can be found here.
The exercise of the right to strike in France
The exercise of the right to strike is a major topic of the news today in light of the pension reform project presented by the Government, which resulted in a national strike movement over several days.
It is a constitutionally-recognised right in French law which gives employees who exercise it strict protection, as long as the criteria for defining a strike are fulfilled.
Definition of a strike
For a movement to be qualified as a strike, there are three obligatory conditions:
- a total stoppage of work: the partial continuation of work (for example, the refusal to carry out only certain work, or to work only on Saturdays) does not legally qualify as a strike; a complete work stoppage is required. The duration of the stoppage does not matter, it can be very short (15 minutes for example);
- a collective and concerted work stoppage: to strike is a right that is exercised collectively. However, the strike movement does not have to be unanimous, or even affect the majority of staff. Moreover, the work stoppage by a single employee of the company can be considered a strike when they answer, for example, a nationwide motive;
- Prior professional claims about which the employer must be informed: professional claims are largely covered by case law (claims relating to salary, working conditions, employment security, etc.). Likewise, the employer information aspect is not very restrictive since the knowledge can, for example, stem from the simple distribution of a leaflet, and there is no need for the employer to have formally rejected the claims. Moreover, no strike notice is required in the private sector (unlike in the public service sector).
If these conditions are not met, the movement cannot be legally qualified as a strike and employees who participate in an illegal movement do not benefit from the protection regime available to striking employees.
Protection of striking employees
A striking employee cannot be sanctioned or dismissed for having participated in a strike movement. Moreover, this protection is not limited to the case of dismissal for having participated in a strike movement but also extends to any dismissal because of an act committed during or at the time of exercising the right to strike and which cannot be qualified as gross negligence. Indeed, only gross negligence, defined as a breach by the employee revealing an intention to harm the employer (for example, false imprisonment of a manager or obstructing the company operation), committed during the exercise of the right to strike authorises the employer to punish the behaviour of an employee.
Continuation of activity during a strike
There is a legal framework for methods of organising company activity during a strike. Striking employees cannot be replaced by temporary employees or employees hired on fixed-term contracts. Also, striking employees cannot be requisitioned.
However, it is possible to continue company activity using the following alternatives: it is allowed to replace striking employees by non-striking employees (including via temporary internal transfers under certain conditions), or to have non-striking employees on permanent contracts work additional hours, to make group employees temporarily available, or to use subcontractors or even volunteers, etc.
Termination of an ill employee’s contract
The employment contract of an ill employee cannot be terminated for a reason related to their health. Otherwise, the dismissal would be considered discriminatory and therefore illegal. On the other hand, the suspension of the employment contract due to an employee illness does not prevent the termination of their employment contract for another reason.
Please note that the developments outlined below do not apply to employees who have requested recognition of an occupational illness, and who benefit from special protection.
Illness and termination of trial period by the employer
Let us recall that a trial period is designed to assess an employee’s professional skills. If these skills do not correspond to the job requirements, the trial period may be terminated without reason and without any formality (except for specific conditions provided for in the applicable Collective Agreement).
The trial period of an employee whose contract is suspended due to illness may be terminated by the employer when the latter’s decision is based on the professional results of the employee observed before their absence due to illness, regardless of the suspension of their contract. However, it is not possible to end the trial period due to the employee illness, even if their absence disrupts the company operations.
Illness and dismissal
Article L. 1132-1 of the French Labour Code specifically prohibits any discrimination on health grounds but does not oppose the employee dismissal, due to reasons other than health-related ones such as:
- the inability of the employee to return to their job, and observed by the occupational physician (1st condition) as well as the employer being unable to provide another position for the employee in the company/group, should the employee refuse a proposed redeployment or be exempt from redeployment by the Occupational physician (2nd condition);
- the objective situation of the company which needs to replace the employee in the job position, whose prolonged absence or repeated absences disrupt operation (reason very strictly assessed in case law, and very rarely accepted in practice) ;
- a fault committed by the employee, either linked to a failure in an obligation of the ill employee, or having been committed before sick leave;
- professional deficiency, not related to their absences;
- an economic reason;
- etc.
Prudence is required at all times, as there may be more protective measures which sometimes result from the branch collective agreement, which may provide for a so-called employment guarantee period, during which the employee whose contract is suspended for illness cannot be dismissed.
Illness and mutual termination
Specifically concerning illness, the Court of Cassation has upheld that in many cases signing a mutual termination with an employee on sick leave was legally possible, and has even recognised this possibility where an employee is deemed as unfit to work by the Occupational physician.
Also, except in the case of fraud or defect in consent, a mutual termination can be legally concluded.