French labour law – mid year update

Staff representative meetings

Changes to rules on employer/staff representative relationships (Rebsamen law) effective from April:

Videoconferencing: staff representative meetings may now be held by videoconference if agreed by both sides and, if no agreement, the employer can organise up to 3 videoconference meetings each year unilaterally; the videoconference device used must allow staff to confirm their attendance and confidentiality must be maintained when secret ballots are held.

Record of meetings: either side may unilaterally decide to record the meeting but the employer can refuse if confidential information is to be discussed. If the employer requests the recording it must bear the cost unless otherwise agreed.

Contents of minutes of works councils meetings and circulation deadlines: The Employment Code covers deadlines for circulating minutes. The new rules specify the minimum content of the minutes where there is no agreement on content with the works council. As a minimum, the minutes must summarize the discussions held and cover employer responses to staff suggestions made at the meeting.

Damages for null and void non-compete restrictions

Until a recent Supreme court decision, employees did not have to show any loss to get damages for a null and void non-compete provision in their employment contracts (for instance because it did not provide for compensation). Now they must show loss.

Defence against Harassment claims

The Supreme Court has decided (reversing previous rulings) that an employer will not be liable for workplace harassment if it has put in place measures both before the harassment occurs and afterwards to deal with the harassment:

Before the harassment – putting in place measures to prevent harassment, including staff training and alarm and support systems (as set out in the Labour Code). Pointing staff to the staff handbook will not be enough. The measures must be proactive and clear including continuing training, guidance notes, updates and anti-bullying champions.

After the harassment – taking immediate steps to prevent a re-occurrence as soon as the employer becomes aware of it. This would include policies that require immediate intervention such as carrying out an investigation, preventing contact between the employee and the alleged harasser and providing any medical or psychological support needed.

Employers should work with the Health and Safety Committee/Works Council to develop the best approach.

Can French employees wear the Hijab?

There is confusion on this issue in two cases before the European Court. In one case the Advocate General, whose opinion is usually followed by the ECJ, says a general ban by an employer on all religious items is not discrimination and therefore allowed. However, in another case the Attorney General has backed an employee who was dismissed for refusing to take off a headscarf for client meetings.

The ECJ decisions will come later in the year. It is hoped they will clarify an increasingly contested area.

Liberalising French Labour law

The French government’s attempt to liberalise French labour law (known as the “El Khomri law”) was forced through Parliament in May and gave rise to the usual widespread demonstrations and strikes in an attempt to block the reforms – especially the end to the 35 hour week. The law is still in legislative process and no further announcements have been made.  We await developments.

The Right to Disconnect

Under the El Khomri law, modifying much of the French labour law framework, there are included provisions designed to protect the work/life balance of employees, known as the Right to Disconnect. This mainly refers to disconnecting from emails outside working hours.

Assuming the law is passed at all it is unlikely to be in force before 2017. However, here is a heads up. Also note that the rule has already been implemented in several business sectors including IT.

Basically, there should be company rules regulating the use of digital tools by staff out of working hours to protect family and private life and the work/life balance. If you employ more than 50 people a Right to Disconnect charter should be agreed with the works council and staff representatives. If less than 50 people, it should be covered in a code of conduct. The charter or code should be reviewed annually.

Under the charter/code, staff should have the right to disconnect from work. However, it will not be a requirement that all email exchanges are restricted out of office hours.