Actance Tribune
What's NEW under French Employment Law?
N° 14 – March 6, 2023
Measure to promote senior citizen employment
To support the reform project aiming to shift the retirement age from 62 to 64 and the contribution period from 42 to 43 years, the French government plans to extend the access conditions for measures favouring the employment of senior citizens. Indeed, the employment rate of senior citizens (55-64) is significantly lower in France than the average for European Union countries (57% compared to 62% in 2019, 75% in Germany over the same period).
The government plans to require employers to monitor the employment rate of senior citizens specifically measured by a “senior citizens index”. The idea would be to require companies to publish this index or face a financial penalty (1% of salaries and earnings paid to employees). The publication of this senior citizens index would be accompanied by the obligation to negotiate the employment of senior citizens (collective negotiation which is now optional).
Moreover, the French government plans to reinforce the use of measures encouraging senior citizens to continue a professional activity.
On the one hand, combined pension and employment allows employees who have taken out their retirement pensions to continue their activity and thus combine the resulting income with their retirement pension. The bill aims to allow the employee to acquire pension rights, not currently possible.
On the other hand, the progressive retirement scheme allows an employee to work part-time while receiving part of their retirement pension. This measure allows the acquisition of new pension rights. Therefore, the bill aims to provide access to this system in parallel with the increased retirement age however, above all the French government plans to restrict the conditions under which an employer can refuse an eligible employee access to this measure.
The Senate will begin examining the text in a public session from March 2 to 12, 2023. If Parliament has not passed the bill by March 26, 2023, the Constitution allows the government to issue an order to implement the reform.
We will inform you of the final changes made to the text.
Trial period and renewal
The purpose of the trial period is to assess the skills of the employee in their job. It must be included in the employment contract, both in principle and duration. Should the employer require additional time to assess their employee, they may offer to renew the trial period. The employee also has this option.
The advantage of the trial period lies in the fact that the employer can terminate it without applying the specific rules of dismissal (compliance with the dismissal procedure, reason based on a real and serious cause for dismissal, compliance with prior notice).
Valid renewal of the trial period
Renewal is only possible if it is provided for by an extended branch collective agreement (that is, a collective agreement concluded by the social partners of a sector of activity which has been made compulsory for all employees and employers within its scope) as well as by the employment contract. The employee in question must clearly and unequivocally accept the renewal before the end of the initial trial period.
For the employee’s acceptance to be considered express and unequivocal, they must write the words “Read and approved”, or “Renewal agreed”, followed by their signature and the date.
What happens if the employee has simply signed the letter from the employer proposing the renewal, without any other indication?
In this case, judges must search in the elements of the case if the employee has clearly and unequivocally accepted the renewal. This was recently stated by the Court of Cassation, which approved the Court of Appeal for having observed, on the basis of elements beyond the sole signature of the employee (in this case, emails via which the employee informed recruiters that their trial period had been extended and that they were looking for work, and a certificate from a recruiter) that the trial period had been validly renewed, and also validly terminated (Court of Cassation – social division, January 25, 2023 n°21-13.699).
Thus, it is preferable to ensure that the employee has given their consent to the trial period renewal with full knowledge of the facts. Indeed, should the trial period be improperly renewed, the employment contract shall be deemed definitive. In this case, the termination of the improperly renewed trial period shall be considered as a dismissal which, failing a valid reason, is without real and serious cause and so entitles the employee to the payment of damages.
Freedom of expression & adherence to company values
During 2022, the social chamber was called upon to rule on employee freedom of expression within a company based on nearly thirty judgments.
These decisions demonstrate a growing desire of employees to take advantage of an attack on this fundamental right.
This strategy allows the employee to have their dismissal deemed null and void on the basis of the breach of a fundamental freedom. If they do not seek reinstatement and regardless of seniority, they may then claim damages ranging from a minimum of six months’ salary to beyond the maximum defined by the “Macron Scale”, pursuant to article L. 1235-3-1 of the French Labour Code.
The judgment of November 9, 2022 (No. 21-15.208) gave the Court the opportunity to remind employers that employees have the freedom of expression, and so a right to criticism (unless abusive), while in a position adhering to company values.
In this particular case, the employee was criticised for their lack of respect for the “fun & pro” value of the company. Specifically, this consisted of “the almost-obligatory participation in seminars and weekends of drinking, frequently resulting in excessive alcohol abuse encouraged by the associates who made very large quantities of alcohol available, and by practices advocated by the associates linking promiscuity, bullying and incitement to various excesses and deviations”.
The employee was dismissed on the basis of the various criticisms made about these practices and their disagreement with these management methods.
The Court of Cassation thus reminds us that “except for abuse, the employee benefits, within the company and outside it, from their freedom of expression” and observes that the letter of dismissal addressed to the employee, who was also accused of “rigidity, lack of listening and a sometimes critical tone” is, partially based on the criticisms they made and on their refusal to adhere to the « fun & pro » value of the company. The court deduced from this that the dismissal was “at least and in part” based on freedom of expression and overrode the Court of Appeal judgment which had rejected this analysis.
In conclusion, before writing their letter of dismissal, the employer must ensure that the complaints against the accused employee do not relate, even partially, to comments they may have made, under penalty of seeing the dismissal measure cancelled by the judge on the basis of freedom of expression.