Actance Tribune
What's NEW under French Employment Law?
N° 29 – July 22, 2024
Two topics in particular stand out in the context of labour litigation: the statute of limitations on claims and the obligation to investigate in the event of a report of harassment. These topics are attracting growing interest due to the variable limitation periods, sometimes prompting parties to invoke longer statutes of limitation to avoid shorter ones.
The intertwining of statute of limitations in labor law
An employee who wishes to take action against their employer must ensure that their action is not covered by the statute of limitations. If they let the deadline pass, their claims will be deemed inadmissible by the judge. The statute of limitations and the starting point of this statute vary depending on the type of claim the employee wishes to make.
In labor law, there are four statutes of limitations:
- Actions related to the performance of the employment contract have a statute of limitations of two years. This period begins on the day the person exercising the right became aware or should have become aware of the facts enabling them to exercise this right. Among the claims subject to the two-year statute of limitations are:
- Claims for requalification of a fixed-term contract as an open-ended contract and the requalification indemnity resulting from it (it should be noted that, for this particular action, the starting point of the two-year statute of limitations varies depending on the irregularity invoked);
- Action based on the employer’s failure to comply with the priority for rehiring after an economic dismissal;
- Action for payment of a sum due under the profit-sharing scheme.
- Actions for payment of wages have a statute of limitations of 3 years. This refers to any action brought in connection with sums due as wages under the employment contract (back pay, back pay of bonuses, issuance or correction of statements on payslips, etc.).
The statute of limitations begins to run from the day the person exercising the right became aware or should have become aware of the facts enabling them to exercise it.
- Actions related to the termination of the employment contract have a statute of limitations of 12 months from the notification of the termination. This period covers all claims relating to the termination of the employment contract that have an indemnity nature, such as the damages for unfair dismissal or null and void dismissal (except in cases of harassment and/or discrimination, which are covered by a specific statute of limitations).
Please note: although linked to the termination of the employment contract, wage claims such as the pre-termination indemnity, the non-competition indemnity or the voluntary retirement indemnity are subject to the triennial statute of limitations.
- Actions for compensation for injury resulting from discrimination or moral or sexual harassment have a statute of limitations of 5 years. The period begins to run from the date of the last act or, in the case of harassment, from the date of the last act that can be qualified as such. Thus, an action for back pay linked to discrimination or moral or sexual harassment, although of a wage nature, has a statute of limitations of 5 years.
Caution: the multiplicity of statutes of limitations raises substantial case law. The prevailing rule is that in the case of multiple claims, each of these claims must be examined separately and assessed according to its specific purpose. This may therefore lead to the statute of limitations being applied to certain claims and not to others.
This is the rule that the French Supreme Court recalled in a judgment of April 24, 2024. Thus, even though an action for requalification of a temporary assignment contract as a fixed-term contract was declared admissible, certain associated indemnity claims were time-barred, while others were not.
Some employees have sought to circumvent the statute of limitations on their claims by trying to attach them to claims subject to a longer statute of limitations and not yet time-barred, invoking a ground of nullity.
In our view, however, an action contesting the termination of employment, whether or not it is based on a ground of nullity, is subject to the aforementioned 12-month statute of limitations.
In conclusion, the multiplicity of statutes of limitations (as well as their starting points) is delicate to handle and its consequences are dreadful since it will then be deemed inadmissible.
In case of denunciation of moral harassment, the employer must act without necessarily having to investigate
The employer is under a general obligation to ensure the health and safety of its employees; among the obligations imposed on it, the employer must in particular protect the physical and mental health of workers.
French Labor Code also expressly prohibits moral and sexual harassment. This prohibition is accompanied by an obligation of prevention on the part of the employer. In other words, the employer must not only ensure that its management is free of any harassment, but it must also prevent harassment within the company and, if necessary, sanction it.
When the employer is informed of actions that may constitute harassment, it has an obligation to act, failing which it could be reproached for a breach of its safety obligation.
Until now, the Supreme Court considered that an employer who did not conduct an investigation after the denunciation of harassment by an employee failed to meet its prevention obligation, even if the facts had not been established.
Thus, recalling that the obligation to prevent harassment and the prohibition of harassment are two distinct obligations incumbent on the employer causing distinct harm, the absence of an investigation following revelations of harassment by an employee is a breach by the employer of its obligation to prevent occupational risks, which causes harm to the interested party even in the absence of harassment (Cass Soc 27 November 20219 n° 18-10.551).
In a judgment of June 12, 2024 (Cass.Soc 12 June 2024 n° 23-13975), the Supreme Court reconsidered this position and considered that in the face of a denunciation of moral harassment, the employer does not necessarily have to conduct an internal investigation provided that it takes preventive measures and that they are sufficient and of a nature to preserve the health and safety of the employee. Thus, in the case at hand, the court of appeal, having noted that the employer had taken sufficient measures to preserve the health and safety of the employee, rightly considered, according to the Supreme Court, that it had not failed in its safety obligation, regardless of the absence of an internal investigation.
In other words, the internal investigation may be one of these measures, but it is not mandatory.
It is therefore on a case-by-case basis that the employer decides on the preventive measures most appropriate to the situation that is the subject of a complaint. In the event of a dispute, the judges will verify whether these were sufficient in view of the context of the company. In any case, the employer must not remain passive. The question remains as to whether such a solution could be transposed to cases of denunciation of sexual harassment. The Supreme Court will also have to rule on this.