Marie-Thérèse (« MT ») : Good morning Laure.
Laure (“L”): Good morning Marie-Thé
MT: Today we will talk about recent developments in French employment law. What’s interesting?
L: There have been a number of very interesting cases recently and particularly one about discrimination during the recruitment process based on nationality.
MT: Can you tell us a bit more about it?
L: Yes. In this case two individuals had been recruited under a fixed term contract. Then the job became available under an indefinite term contract. Both applied for it. Obviously only one was selected and the employee whose application was rejected filed a claim against the company for discrimination based on nationality and family name. The company explained that the selection had been made on the basis of the more advanced degrees of the successful candidate but the court rejected this argument.
MT: Does this mean that in France degrees are not considered as a valid objective criterion for an employer to justify its choice?
L: No. In fact normally a more advanced degree would be a valid reason to make a choice but the main issue there was that the employer did not define and make known in advance the criteria it would use to select the employees.
MT: So it’s a very severe decision for employers, and HR managers must absolutely define in advance and in a pragmatic manner the selection criteria they will use for any new recruitment process.
L: Yes indeed.
MT: Good. Coming now to moral harassment? Any new decisions?
L: Yes. There has been another interesting case in this regard. It was about an employee who committed suicide due to the behaviour of his subordinate and the court recognised that the behaviour of this subordinate constituted moral harassment.
MT: So it is possible to have moral harassment from a subordinate against his superior?
L: Yes. In fact there is no concept of hierarchy in the French Employment Code or in the French Penal Code so whatever the relationship between the employees, there can be moral harassment. We had another interesting case where moral harassment was recognised from an external party to the company (such as a service provider or a client).
MT: Moving on to another topic, I heard there was an interesting recent decision on dismissals.
L: Yes, it was regarding a mass redundancy scheme. The job saving scheme was held to be null and void because the employer could not prove the reality and the seriousness of the economic grounds for dismissal.
MT: and what are the consequences?
L: well, if the claim is filed sufficiently near to the beginning of the redundancy process, the employer may be required to restart the whole process over again from the beginning. If it comes at a later stage, for example after the notification of the dismissal, the employees may have to be reinstated in the company.
What is very new is that normally the nullity of the dismissal and of the job saving scheme can only result from the fact the job saving scheme does not contain sufficient measures to save jobs. Normally an unfair dismissal would just give rise to damages so it’s very new that the fact not to be able to prove the reality of the dismissal can constitute a case of nullity.
MT: and is this the definitive position of the French courts?
L: No, this case was decided by a regional court of appeal. But what is worrying is that another regional court of appeal took a similar decision last autumn. So we need to wait for a decision of the Supreme Court to decide if it is definitive case law or not and watch attentively the evolution of this case law.
MT: Thank you very much Laure.
L: My pleasure.
Back to top