frederic.chhum

Par frederic.chhum le 09/06/18
Dernier commentaire ajouté il y a 1 année 8 mois

The religious question at work is a sensitive subject.

Today, the religious matters poses, multiple legal questions to French companies.

If it is necessary to respect the religious freedom of the employees at work, it may sometimes seem necessary to restrict their manifestations.

Employers and Human Resources managers may find themselves disarmed by the demands of certain employees regarding their religious practice.

I) Religion at work: Reconciliation between the freedoms of employees and the freedom of enterprise

In the field of religion at work, three main principles apply:

The principle of secularism (law of 3 December 1905, article 10 of the 1790 DDHC, article 1 of the 1958 Constitution, and article 9 of the European Convention for the Protection of Human Rights of 4 November 1950);

Freedom of religion (Article 9 of the 1950 European Convention for the Protection of Human Rights);

The principle of non-discrimination (preamble of the French 1958 Constitution and Article L. 1132-1 of the Labour Code).

In addition, three texts allow limitations on religious freedom at work.

First of all, Article L. 1121-1 of French Labour Code lays down the general rule concerning the possibility of restricting individual and collective freedoms in the workplace. However, these restrictions must be justified by the nature of the task to be performed and proportionate to the aim pursued.

Next, Article L. 1321-3 2° of French Labour Code provides for the possibility to includes restrictions on individual and collective freedoms in the rules of procedure, but always on condition that they are justified by the nature of the task to be done and proportionate to the aim pursued.

Lastly, the Law EL Khomeri of 8 August 2016 introduced Article L. 1321-2-1 to French Labour Code which states that "the rules of procedure may contain provisions inscribing the principle of neutrality and restricting the manifestation of convictions. Employees if these restrictions are justified by the exercise of other fundamental rights and freedoms or by the need for the proper functioning of the undertaking and if they are proportionate to the aim pursued ".

This article is therefore more precise and more restrictive than the two others mentioned above. It poses a double condition to provide for the principle of neutrality:

Justification of the restriction through the exercise of other fundamental rights and freedoms or due to the need for proper functioning in the company and;

Proportionality of the restriction to the goal sought.

II) 10 practical examples

For practical reasons the term "employee" in the masculine is used.

Question 1: Should an employee inform his employer of the reason for his request for leave, if he / she has religious reasons? In this case, is the employer obliged to grant him this leave?

No. An employee does not have to inform his employer of the reason for his request for leave.

However, if he specifies that the reason is religious, the employer is not obliged to grant him this leave.

However, the employer's response must be based on objective reasons unrelated to any discrimination.

Question 2: Does an employer have to give different meals to his employees because of specific requests related to religion?

No and yes. The employer has no obligation to grant this request.

Nevertheless, according to us, nothing forbids him to propose different dishes according to the religion of his employees.

Question 3: If one or more employees occupy a meeting room without permission to pray. Can the employer forbid them?

Yes. Meeting rooms are a dedicated area for work.

If the employee occupies this room without authorization, for whatever reason, the employer may ask him to leave the room.

Question 4: Can an employer organize an event in the company to celebrate Christmas?

Yes. Nothing forbids it.

On the other hand, the employer must be careful not to exclude certain employees. All employees must be invited, and everyone must be able to participate in this event if they wish without discrimination.

Question 5: Can an employer collect information about the religion of its employees? Mention this information in the management or evaluation tools of the personnel?

No. The employer can collect personal information about his employees only if they are necessary and relevant.

They can only aim to assess their professional abilities and must have a direct and necessary link with the evaluation of these skills.

Indeed, the religion of the employees can’t be considered as relevant or necessary information. Thus, it can’t be requested or recorded.

Question 6: Can an employer mention in a job offer whether or not one belongs to a religion?

No.

To subordinate religious affiliation to a religion would be a discriminatory measure.

Question 7: Because of his religious beliefs, an employee refuses to perform certain tasks of his work or to work at certain times. Can his employer punish him?

Yes. The employer may  sanctionned its employee, since the refusal to perform the tasks for which he was hired constitutes misconduct that may result in disciplinary action.

However, the task to be performed must not endanger the employee.

Thus, the Court of Cassation ruled that an employee refusing to take charge of a project to be held in the Middle East, given the risks that, because of his religious denomination, the realization of this project would run to his safety cannot be dismissed if the risk is real and he has informed his employer (Cass., 12 July 2010, n ° 08-45509).

Question 8: Can an employee refuse to submit to the compulsory medical examination because of his religious beliefs?

No. An employee cannot refuse to submit to the medical examination.

Indeed, it’s an obligation for all employees. This refusal constitutes a fault (Cass Labour, May 29, 1986, No. 85-45,409).

Question 9: Can an employer filter the company's internet access to prevent its employees from visiting sites related to religion?

Yes. Given that the provision of the Internet to employees is a working tool, which is the property of the employer, the latter can filter access to websites, which have no professional purpose.

Question 10: Can an employer prohibit an employee from praying at his place of work?

Yes and no. The employer cannot forbid an employee to pray at his place of work (in his office for example) during his break time, if this does not hinder the organization of work.

On the other hand, he may forbid prayers when they take place during working hours or disrupt the work of other employees. During the working hours, the employee is required to perform the work assigned to him by the employer.

Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)

. Paris : 4 rue Bayard 75008 Paris - Tel: 01 42 56 03 00 ou 01 42 89 24 48
. Nantes : 41, Quai de la Fosse 44000 Nantes -  Tel: 02 28 44 26 44

e-mail : chhum@chhum-avocats.com

Blog : www.chhum-avocats.fr

http://twitter.com/#!/fchhum

 

 

 

Par frederic.chhum le 08/06/18
Dernier commentaire ajouté il y a 1 année 8 mois

M. X, licencié le 12 août 2004 pour inaptitude médicale par la société Air France, a sollicité le 24 janvier 2005 auprès de Pôle emploi Picardie sa prise en charge au titre de l’assurance chômage.

Il a été admis au bénéfice de l’allocation d’aide au retour à l’emploi à compter du 8 mars 2005 et jusqu’au 31 mai 2011, mois de son 65ème anniversaire, avec dispense de recherche d’emploi.

Le 4 janvier 2012, Pôle emploi Picardie l’a mis en demeure de rembourser les allocations chômage perçues au motif qu’il résidait aux Etats-Unis durant la période indemnisée.

Par arrêt du 23 juin 2015, l’allocataire a été condamné par la Cour d’appel d’Amiens à payer à Pôle emploi Picardie la somme de 193 999,27 euros.

Il s’est pourvu en cassation.

Pour lire l'intégralité de la brève, cliquez sur le lien ci-dessous.

En savoir plus sur https://www.village-justice.com/articles/salarie-cadres-cadres-dirigeants-pour-percevoir-les-allocations-assurance,28699.html#WJgKDkM0rIZfkuyD.99

Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)

. Paris : 4 rue Bayard 75008 Paris - Tel: 01 42 56 03 00 ou 01 42 89 24 48
. Nantes : 41, Quai de la Fosse 44000 Nantes -  Tel: 02 28 44 26 44

e-mail : chhum@chhum-avocats.com

Blog : www.chhum-avocats.fr

http://twitter.com/#!/fchhum

 

Par frederic.chhum le 06/06/18
Dernier commentaire ajouté il y a 1 année 8 mois

1) Dans un arrêt du 13 avril 2018, n°11-28713 la Cour de cassation a affirmé que seules les personnes mentionnées à l'article L. 7111-3 et liées par un contrat de travail à une entreprise de journaux et périodiques peuvent prétendre à l'indemnité de congédiement instituée par l'article L. 7112-3.

Elle a exclu l’indemnité de licenciement des journalistes (1 mois par année d’ancienneté) pour les journalistes travaillant pour une agence de presse.

2) Dans le cadre d’un arrêt du 13 février 2018 de la Cour d’appel de Paris, il a été transmis la question suivante à la Cour de cassation :

« L'interprétation jurisprudentielle constante des articles L 7112-2, L 7112-3 et L 7112-4 du code du travail issue de l'arrêt de la chambre sociale de la Cour de cassation numéro 11-28.713 du 13 avril 2016 (FS+P+B) réservant le bénéfice de l'indemnité de licenciement [de congédiement] aux journalistes salariés des entreprises de journaux et périodiques à l'exclusion des journalistes des agences de presse et de l'audiovisuel est-elle conforme aux droits et libertés constitutionnellement garantis, dont en premier lieu le principe d'égalité ? » ;

La Cour de cassation considère qu’il n’y a pas lieu à renvoyer au Conseil constitutionnel cette QPC.

Elle relève :

d'une part, que la question, ne portant pas sur l'interprétation d'une disposition constitutionnelle dont le Conseil constitutionnel n'aurait pas encore eu l'occasion de faire application, n'est pas nouvelle ; d'autre part, qu'il n'existe pas, en l'état, d'interprétation jurisprudentielle constante des dispositions législatives contestées refusant au journaliste salarié d'une agence de presse le bénéfice de l'indemnité de licenciement prévue aux articles L. 7112-3 et L. 7112-4 du code du travail.

En conclusion, la Cour de cassation semble laisser la question (du montant de l’indemnité de licenciement des journalistes des agences de presse) ouverte en affirmant qu’il n’existe pas d'interprétation jurisprudentielle constante des dispositions législatives contestées refusant au journaliste salarié d'une agence de presse le bénéfice de l'indemnité de licenciement prévue aux articles L. 7112-3 et L. 7112-4 du code du travail.

A suivre.

Source : Legifrance

C. cass. 13 avril 2018, n°11-28713

https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000032414079

C. cass. 9 mai 2018, n°18-40007

https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000036930103&fastReqId=486983316&fastPos=1

Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)

. Paris : 4 rue Bayard 75008 Paris - Tel: 01 42 56 03 00 ou 01 42 89 24 48
. Nantes : 41, Quai de la Fosse 44000 Nantes -  Tel: 02 28 44 26 44

e-mail : chhum@chhum-avocats.com

Blog : www.chhum-avocats.fr

http://twitter.com/#!/fchhum

 

Par frederic.chhum le 04/06/18
Dernier commentaire ajouté il y a 1 année 8 mois

In a decision of April 12th 2018, the Court of Cassation has just ruled on the wrongfulness of the up or out system applicable in particular in some Strategy Consulting Companies.

This up or out system is a system of promotions in a hierarchical and pyramidal structure that tends to exclude employees (particularly senior executives) who are unable to gain access to the next level.

1) The facts: a dismissal for professional incompetence following a proposal for a contractual break.

Mr. Y, hired on October 11, 1989 by B (now Accenture), as a consulting engineer, held a senior executive position.

After a proposal for a conventional break (Rupture Conventionnelle - the Conventional Break becomes a prerequisite for dismissal), he was dismissed on March 4, 2009 for professional incompetence.

The Paris Court of Appeal dismissed the employee's claims of discrimination on grounds of age and the nullity of the dismissal.

The Paris Court of Appeal held that both the correlation between the effects of a system of promotions in a hierarchical and pyramidal structure tending to exclude employees not being able to access the so-called reduction of the proportion of executives over forty years of age to the next higher level, let alone figures still being discussed, that the proposal for a negotiated departure constitute factual elements that in itself imply the existence of direct or indirect discrimination based on the age of the employee.

By decision of April 12, 2018, the latter quashed the judgment of the Court of Appeal.

2) Solution of the Court of Cassation in decision of April 12th, 2018: wrongfulness of the up or out system ?

In case of discrimination, the proof system is set up: the employee must give facts suggesting the existence of discrimination and the defendant must prove that his/her decision is justified by objective elements that are not subject to any discrimination.

The judge forms his/her conviction after having ordered, if necessary, all the measures of instructions which he/she considers useful.

In this case, the Court of Cassation breaks the judgment of the Paris Court of Appeal and affirms "that by ruling thus, whereas it had noted the absence of real and serious cause for the dismissal for professional insufficiency notified after proposing a conventional break (rupture conventionnelle), as well as the existence of a so-called up or out system for the exclusion of employees who are not able to gain access to the higher echelon, and without examining the other elements put forward by the employee, in particular those relating to the departure shortly after his dismissal of nine executive directors (cadres Dirigeants) over the age of forty, and to the low proportion of employees over forty years of age present in the company with regard to the proportion of those same employees in the professional branch, all of which, taken as a whole, gave rise to the assumption of a discrimination on the ground of age, the Court of Appeal the aforementioned texts ".

The Court of Cassation censors the Court of Appeal, which did not examine the elements put forward by the employee, namely:

The departure shortly after his dismissal of nine executive directors over the age of forty, The low proportion of employees over 40 years old present in the company with regard to the proportion of these same employees in the professional branch.

These elements, taken as a whole, leave, according to the Court of Cassation, to suppose the existence of discrimination on grounds of age.

The employee could also appeal to the Defender of Rights; the latter could, where appropriate, have submitted observations to the Court of Appeal or the Labour Court.

The case is referred to the Paris Court of Appeal otherwise composed. The judgment of the Court of Appeal is long overdue.

C. cass. April 12th, 2018, n° 16-25503

https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000036829784&fastReqId=962208965&fastPos=4

Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)

. Paris : 4 rue Bayard 75008 Paris - Tel: 01 42 56 03 00 ou 01 42 89 24 48
. Nantes : 41, Quai de la Fosse 44000 Nantes -  Tel: 02 28 44 26 44

e-mail : chhum@chhum-avocats.com

Blog : www.chhum-avocats.fr

http://twitter.com/#!/fchhum

 

 

Par frederic.chhum le 01/06/18
Dernier commentaire ajouté il y a 1 année 8 mois

According to a study published on January 26th, 2018 by French Ministry of Labour, employees (salariés) made, between January and September 2017, an average of 10.2 hours of overtime per quarter.

However, these figures only take into account overtime worked, reported and paid by the companies.

In practice, many extra hours / overtime (heures supplémentaires) are worked by employees without being paid.

Above all, unlike an urban legend, executives (cadres, cadres supérieurs) can be paid overtime.

In a context of a labour dispute, overtime is often an important item of employee demands.

Sometimes, the amount of overtime claimed by an employee may be equivalent to the amount of damages for unfair dismissal.

The “Macron” ceiling on indemnities for unfair dismissal will at the same time lead employees to make further claims to the labour tribunal, in addition to challenging their dismissals.

I) Executive managers and executives with “forfait jours”: can I be paid for my overtime?

A- Senior executives (Cadres dirigeants) and overtime (heures supplémentaires)

As a matter of principle, senior executives (cadres Dirigeants) are not subject to legislation on overtime.

Nevertheless, if the employee demonstrates that he does not fulfill the 4 cumulative conditions of the senior executive (responsibilities whose importance implies a great independence in the organization of his schedule, empowerment to make decisions in a largely autonomous way, remuneration being in the highest levels of the remuneration systems in the company, participation in the management of the company), he can obtain payment of overtime.

By way of example, in a judgment of November 15, 2017 (Mr X C / RMH & LOUVRE HOTELS GROUP), the Paris Court of Appeal upheld the judgment of the Meaux Labour Tribunal which had condemned the company to a payment of EUR 72,441 gross as overtime reminders (rappels d'heures supplémentaires).

The employee employed as Director, senior executive, had demonstrated that he did not participate in the management of the company, that he did not have one of the highest remuneration and that he could not take any decisions in a largely autonomous way.

In order to demonstrate overtime, the employee produced the weekly schedules of the staff, validated by the employer as well as a general summary table of his schedules.

B- "Forfait jours" and overtime

The use of Forfait jours must be authorized by a collective agreement at the company or site (établissement) level or by a branch agreement (article L.3121-63 of the Labour Code).

This agreement must specify the categories of employees concerned, the volume of packages and the main features of the packages.

The agreement must also contain provisions ensuring the protection of health and safety of the employees and set the conditions for regular monitoring of the workload of employees (charge de travail).

If the agreement does not provide for one of these provisions, the fixed-term agreements are null and void.

If the employer does not comply with the contractual provisions governing the “forfait jours” (for example if it does not set up an annual evaluation on the workload), the “forfait jours” are not effective.

In both cases, the employee's working time must be calculated on the basis of 35 hours and he / she can then request the payment of his overtime, subject to substantiating his request.

Thus, in a judgment of 21 February 2018, the Paris Court of Appeal sentenced an employer to pay 15,000 euros as overtime reminders, since the latter did not set up an annual evaluation evoking the workload of the employee.

In support of his request for overtime, the employee produced e-mails, schedules, certificates and overtime tables to support his request.

II) How to calculate overtime under French law ?

2.1) The principle: 35 hours per calendar week.

Overtime is calculated by calendar week (semaine civile), which is Monday at 0.00 to Sunday 24.00.

Therefore, hours worked beyond the daily hours of work are not necessarily overtime because overtime is calculated over the calendar week (semaine civile).

Only hours worked in excess of 35 hours per week are overtime hours.

Example:

Ms. X works 35 hours a week, from 9 am to 5 pm, with 1 hour of lunch break (7 hours of actual work per day).

During the week of January 8 to 14, 2018, Ms. X worked from Monday to Friday, from 9 am to 7 pm, with 1 hour of lunch, ie 9 hours of actual work per day.

She therefore performed: 9 hours x 5 days = 45 hours.

His employer must therefore pay him 10 extra hours.

During the week of January 15 to 21, 2018, Ms. Y paid 2 days of paid vacation on Thursday and Friday.

She worked from Monday to Wednesday, from 9am to 7pm, with 1 hour of lunch break.

She therefore performed: 9 hours x 3 days = 27 hours.

No extra hours are due to him.

It is therefore imperative to count the days of paid leave / absence for sickness or other day of absence (décompter les jours de congés payés / absences pour maladie ou autre jour d’absence) in order to calculate the exact working time.

2.2) Overtime payment (la majoration des heures supplémentaires) : 10%, 25% or 50%?

In the absence of a collective agreement, overtime premium rate is fixed at 25% for the first 8 hours, then 50% for the following hours (Article L.3121-36 of the Labor Code).

A collective agreement may, however, set overtime rates, but may not be less than 10%.

The salary for overtime calculations corresponds to the "basic salary", which takes into account all elements of remuneration "directly related to the employee's professional activity" (Cass.soc., September 23rd, 2009, n ° 08-40.636).

Thus, in the calculation of the salary to be increased the bonus for Sunday work, at night, but also the benefits in kind (avantage en nature) or target bonus.

2.3) The exceptions.

2.3.1) Annualization of working time (Article L.3121-41 of the Labour Code)

A collective agreement may provide for the organization of working time over a period of more than one week and, at most, over three years.

If the working time is organized over an annual period, the trigger for overtime is set at 1607 hours (except for a more favorable collective agreement).

The collective agreement may also provide for the possibility of establishing a weekly calculation of working time, which would trigger overtime.

In case of organization of working time over a period of less than or equal to 1 year, are considered as overtime (Article D.3121-25 of the Labour Code):

Hours worked beyond 39 hours per week;

Hours worked beyond the average 35-hour week calculated over the reference period.

2.3.2) The days of “RTT”.

An employee may benefit from RTT days to compensate, by rest days, for a working week of more than 35 hours.

Example:

An employee working 37 hours a week has 12 days of RTT per year.

The "extra" hours worked each week do not give rise to financial compensation but to compensation in days of rest (RTT).

3) How to prove overtime before the Conseil de prud’hommes

In terms of overtime, the Labour Code provides for a shift in the burden of proof.

Thus, Article L.3171-4 of French Labor Code provides that "In the event of a dispute concerning the existence or the number of hours of work completed, the employer shall provide the judge with the information necessary to justify the hours actually carried out by the employee.

On the basis of these elements and those provided by the employee in support of his application, the judge forms his conviction after ordering, if necessary, all the measures of inquiry that he considers useful. "

All the elements enabling the actual work schedules to be demonstrated can be produced as soon as they make it possible to determine exactly the hours worked.

It could be:

Score records; emails; Personal diary (including personal and professional appointments) specifying start time and end time each day; testimonies from colleagues; Train / plane / bus tickets for business trips; shared professional agenda.

4) In practice, how to prepare your file before the prud’hommes ?

In order to simplify and make more readable overtime count, it is best to provide an “Excel” file below.

The summary table should be a strict reflection of the elements produced to demonstrate overtime.

Only demonstrated overtime, with supporting evidence, is likely to be admitted before a Labour tribunal or a Court of Appeal.

In the absence of evidence to demonstrate the actual schedule, it will only take into account the applicable time in the company.

5) The 3-year time limit (prescription) of overtime recall requests.

Since the 2013-504 securing employment law of June 14, 2013, article L.3245-1 of the Labour Code provides for a 3-year time limit “prescription” for salary recall requests.

This period of 3 years applies "from the day on which the exerciser knew or should have known the facts enabling him to exercise it" or, if the employment contract is broken "on the amounts due under three years before the termination of the contract ".

6) Concealed work (travail dissimulé) and overtime.

In the presence of unpaid overtime, an employee may also obtain an allowance for concealed work (travail dissimulé) corresponding to 6 months’ salary (Article L.8223-1 of the Labor Code).

In fact, under Article L. 8221-5 of the Labor Code: "is deemed to be concealed work, by concealment of salaried employment, the fact for any employer to intentionally evade the completion of the formality of declaration prior to hiring, to evade the issuance of pay slips or to mention on the latter a number of hours of work less than that actually accomplished ".

Thus, it is considered as concealed work that an employer does not mention overtime on the pay slip (fiche de paie), and therefore indicates a lower number of hours of work than actually worked.

Recently, in a judgment of 13 February 2018 (Mrs X c / CRAZY ENTERTAINMENT), the Paris Court of Appeal sentenced an employer to pay compensation for concealed work for having mentioned, on the payslips (les fiches de paie), a number of hours of work less than the actual work done.

In particular, the judges found that the employer could not have been unaware that the employee had worked overtime, which had not been remunerated or mentioned on the pay slips (and therefore not declared and subject to social security contributions).

In support of her request for overtime and concealed work allowance, the employee produced a count of overtime hours, schedules indicating the scheduled hours, and certificates of employees.

Similarly, in a judgment of 23 January 2018 (Mr Z c / TF1 PRODUCTION), the Versailles Court of Appeal sentenced an employer to the payment of compensation for work concealed because of the non-payment of 630.74 euros overtime.

Similarly, in a high-profile judgment of 21 February 2018, a hairdresser obtained the conviction of his former employer for an allowance for covert work of 9,000 euros for non-payment of 3.5 hours overtime.

The Court of Appeal thus held that the employer had "knowingly” omitted to take into account the hours thus completed and to pay them when the balance of any account is paid.

In support of his request for overtime, the employee produced the handwritten schedules of the hair salon.

Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)

. Paris : 4 rue Bayard 75008 Paris - Tel: 01 42 56 03 00 ou 01 42 89 24 48
. Nantes : 41, Quai de la Fosse 44000 Nantes -  Tel: 02 28 44 26 44

e-mail : chhum@chhum-avocats.com

Blog : www.chhum-avocats.fr

http://twitter.com/#!/fchhum