Publication of the labour market law
Law 2022-1598 of 21 December 2022 on emergency measures relating to the functioning of the labour market with a view to full employment introduces two important innovations:
The possibility of using a single fixed-term contract to replace several absent employees
In principle, when an employee is hired on a fixed-term contract to replace several employees successively, as many contracts must be concluded with him or her as there are employees to be replaced. Failure to do so exposes the employer to the requalification of the contractual relationship into an indefinite relationship term.
On an experimental basis, for two years, as from the publication of a Decree to be published, the law allows a single fixed-term contract or temporary work contract to be concluded to replace several employees in certain sectors to be defined by Decree. However, the purpose and effect of such hiring cannot lead to fill a job related to the normal and permanent activity of the company on a permanent basis. It therefore remains to be determined under what circumstances the experiment will be implemented.
Simple presumption of resignation in the event of abandonment of post
Since 23 December 2022, the new Article L. 1237-1-1 of the Labour Code establishes the principle of the presumption of resignation when the employee voluntarily abandons his / her post and does not return to work after having been given notice to justify his / her absence and to return to his / her post at the end of a period set by the employer. The minimum period has yet to be specified by a Decree to be published.
The employee may nevertheless challenge this presumption by bringing the matter directly before the Labour court, arguing that the abandonment of work was not voluntary and results from the employer’s misconduct (for example, by referring to the employer's wrongful conduct, health and safety reasons, the right to withdraw from work, the right to strike, etc.).
The absence of a job study by the occupation physician does not automatically invalidate the notice of unfitness
In this case, an employee was declared unfit for his job by the occupational doctor, with no possibility of redeployment. The employer challenged this unfitness certificate before the industrial tribunal within the 15-day time limit, arguing that the occupational doctor had not carried out the job study required by Article R. 4624-42 of the Labour Code. The industrial tribunal dismissed the employer and confirmed the certificate of unfitness in a judgment confirmed on appeal.
The High Court confirmed the decision of the lower courts in a judgment of 7 December 2022 (N°. 21-17.927). Indeed, the High Court ruled that the employee's physical unfitness was the result of a deterioration in working relations during the leave and not a result of the previous working conditions. Therefore, the deterioration of the working conditions had no impact on the unfitness. In this context, the absence of the prior examination of the position by the occupational doctor, even if the procedure was irregular, does not question, ipso facto, the unfitness certificate within the framework of the procedure of Article L. 4624-7 of the Labour Code and is, in this case, "without impact".
The fact remains that the judge can assess, on the basis of the elements of all kinds on which the doctor based his opinion, whether this unfitness certificate is founded. The irregularity of the procedure based on the absence of a prior job study by the occupational doctor could, in other circumstances, be taken into account.
Abuse of the right to sue by an employee in case of intimidation of the employer
In principle, the right to fill a claim against one's employer is a fundamental freedom. Dismissal on this ground is therefore void. However, the exercise of this fundamental freedom by the employee may constitute an abuse of rights, in particular in the case of a logic of intimidation by the employer.
In this case, an “RATP” metro driver was dismissed for serious misconduct for having tried to intimidate a superior by threatening to file a claim if he persisted in his desire to receive him for a disciplinary interview. The employee then considered that his dismissal was null and void, insofar as it had occurred as a result of legal action against his employer.
For the lower courts, the employee's desire to file a claim did not result from a genuine desire to take legal action, but rather was part of a pattern of intimidation, in an overall context of repeated threats against his colleagues and superiors.
The High Court confirmed the decision of the lower courts in a judgment of 7 December 2022 (N°. 21-19.280) and thus characterised the abuse of the employee's right to take legal action.
Authored by Alexandra Tuil and Sibille Bouëssel du Bourg.