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Comprehensive employee rights update: mandatory employee meetings, health-related absences, parental leave, and interview procedures

Published on : 29/11/2023 29 November Nov 11 2023
Newsletter / Recent Case Law
Newsletter

Mandatory employee development meetings and performance appraisal meetings can take place on the same day but separately

Pursuant to article L.6315-1 of the French Labor Code, all employers must organize a meeting with their employees to discuss their professional development. Such meeting must take place at least every 2 years (subject to the terms of a national or company-level collective bargaining agreement providing for a different periodicity).

In case of non-compliance, the employer must make a payment into the employee’s personal training account and pay an increased professional training contribution to the state (up to 3000€ per employee). This however only applies to companies employing at least 50 employees.

Employers also commonly organize annual appraisal meetings during which the employee’s performance is reviewed and new objectives are set. This type of meeting is not mandatory under French law but is highly recommended. In the absence of such meeting, employers can face proof difficulties when sanctioning an employee for poor performance.

For the sake of efficiency, employers tended to discuss both the employee’s performance and their development during the same meeting. However, the French Supreme Court had ruled that this was not allowed but without specifying whether such meetings could nevertheless be held on the same day, for example one after the other. This has now been clarified in a ruling dated July 5th, 2023. It is possible to do so but subject to making a clear distinction between each type of meeting.

It is important also to note that French law also provides for a mandatory annual meeting with employees whose working time is calculated in days worked per year (“forfait jours”) rather than hours worked per week. The purpose of this meeting is to discuss the employee’s workload. In the absence of such meeting, the employee could challenge this working time arrangement and claim overtime back-pay which can prove very costly for the employer.

Ensure that all employees benefit from their mandatory professional development meeting and, for employees whose working time is calculated in days worked per year, the mandatory annual workload meeting.

If you wish to organize all or some of these meetings on the same day, ensure that you document that separate meetings were held (separate invitations, separate meeting minutes, etc…).

Any absence due to illness or accident, regardless of its duration, entitles the employee to paid leave

Contrary to European law, the French Labor Code does not take into account, for the calculation of paid leave, periods of absence due to non-occupational illnesses or periods of absence due to occupational illnesses or accidents exceeding one year. In its 2013 annual report, the Social Chamber of the French Supreme (Cour de Cassation) warned the authorities of the need to reform articles L 3141-3 and L 3141-5 of the Labor Code, which are incompatible with Article 7 of Directive 2003/88/EC of 4 November 2003 and Article 31 § 2 of the Charter of Fundamental Rights of the European Union. However, the Directive cannot be directly invoked in a dispute between an employee and a private employer. But in 2018, the Court of Justice of the European Union (CJEU) clarified that Article 31 § 2 of the aforementioned Charter can be directly invoked by an employee in a dispute with his employer, and that the national judge must then leave the non-conforming national legislation unapplied. And this is what the Court of Cassation did in two resounding rulings on September 13, 2023; from now on, workers who are ill or injured are entitled to paid leave during their absence, even if this absence is not linked to an accident at work or an occupational disease. And in the case of an occupational accident or disease, the calculation of the paid leave entitlement will no longer be limited to the first year of absence.

In a third decision of the same date, the French Supreme Court also ruled on the limitation period for paid leave compensation, which runs from the end of the period during which the leave could have been taken. It stated that the limitation period begins only when the employer justifies that it has exercised the diligence required by law to ensure that the employee can effectively exercise his or her right to paid leave. Otherwise, no statute of limitation is applicable because the limitation period has not started!

In this way, it draws the consequences of a decision of the ECJ of September 22, 2022, which ruled that the loss of the right to annual paid leave at the end of a reference period or a carry-over period can only occur under the condition that the employer has enabled the employee to exercise this right in a timely manner.

Paid leave not taken during parental leave is no longer lost

The French Supreme Court usually considers that an employee returning from parental leave does not have the right to carry over his or her paid leave to the extent that it is the employee himself or herself, by deciding to take such leave, who makes it impossible to exercise his or her right to paid leave. However, this case law was at odds with that of the ECJ, which since 2010 has held that the inability of an employee returning from parental leave to take his or her accrued paid leave is contrary to European Union law. A change in the French Supreme Court's case law was therefore expected, and with its ruling of September 13, it is now a fact. In accordance with European law, the Supreme Court now rules that an employee who has not managed to use all of his or her paid leave before going on parental leave can benefit from it after returning to work.

Starting point of the period between the invitation and the actual interview

In a decision dated September 6, 2023, the French Supreme Court recalled that the preliminary interview cannot take place less than 5 working days after the presentation of the registered letter or the personal delivery of the letter of invitation. As a result, it annulled a judgment that had sanctioned the employer for irregular procedure on the grounds that the letter of invitation had been withdrawn by the employee less than 5 working days before the interview. In fact, the time limit began to run on the day after the said letter was presented at the employee's home, although it was not immediately withdrawn by the employee. 





 
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