News: new rules on paid leave during sick leave

The amendment modifying the Labour Code regarding paid leave during sickness was adopted at first reading by the National Assembly on 18 March 2024:

  • Treatment of absences for non-occupational illness or accident as actual working time (amended art. L.3141-5 of the Labour Code);
  • Accrual of 2 working days of leave per month, up to a limit of 24 days per reference period, during a sick leave of non-occupational origin (new art. L.3141-5-1 of the Labour Code);
  • Removal of the limit of one uninterrupted year of sick leave for occupational illness or accident, beyond which the absence no longer gave rise to leave entitlement (amended art. L.3141-5 of the Labour Code);
  • Carry-over right limited to 15 months from the date on which the employee receives information from the employer about the leave available upon returning to work (new art. L.3141-19-1 of the Labour Code). In the event of sick leave of at least one year, the carry-over period begins on the date on which the reference period during which this leave was accrued ends (new art. L.3141-19-2 of the Labour Code).

These new rules will apply retroactively for the period running between 1 December 2009 and the future date of entry into force of the law:

  • if the employee is present in the company on the date the law enters into force: any action seeking the granting of leave days in respect of sick leaves occurring after 1 December 2009 must be brought, on pain of being time-barred, within a period of 2 years from the entry into force of the law;
  • if the employee has left the company on the date the law enters into force: the three-year limitation period applicable to wage claims will apply, so employees will have 3 years to act from the termination of their employment contract (art. L. 3245-1 of the Labour Code).

Next steps: review of the bill by the joint committee (commission mixte paritaire, CMP) on 9 April 2024; review of the CMP text by the National Assembly on 10 April 2024. (Amendment no. 44 of 18 March 2024 to the bill adapting French law to EU law in the fields of economy, finance, ecological transition, criminal law, social law and agriculture)

Compliance with the duty to redeploy where the employee refuses the offered position

The employer may dismiss an unfit employee if it can show that the employee refused an offer of employment consistent with the occupational physician’s recommendations, so that the duty to redeploy is then deemed satisfied, even if the offer entails a modification of the employment contract. (Cass. soc., 13 March 2024, no. 22-18.758)

Law of evidence: unlawful video surveillance system

Evidence of misconduct obtained from an unlawful video surveillance system (i.e. without informing the employees and without consulting the Social and Economic Committee) is admissible if it is indispensable to the exercise of the right to evidence and proportionate to the legitimate aim pursued (here, the protection of the company’s assets).

In this case, a pharmacy, after observing stock disappearances, had resorted to video surveillance. The employer then recorded 19 serious anomalies in less than 2 weeks (entering a quantity of products lower than those actually sold, selling products at prices below the sale price, failure to record the sale of products handed over to the customer), which led to notifying the employee of dismissal for serious misconduct. (Cass. soc., 14 February 2024, no. 22-23.073)

Temporary breach of the non-compete clause: loss of the financial consideration

A breach of the non-compete clause prevents the employee from claiming the benefit of the financial consideration for that clause, even after the breach has ceased. (Cass. soc., 24 January 2024, no. 22-20.926)

Change of workplace: the notion of geographic area

The use of a personal vehicle generates, on account of the schedules and distance, fatigue and financial costs, which is a criterion that may be taken into account to assess the extent of the geographic area and to determine whether the employee’s new assignment amounts to a modification of the employment contract.

In this case, the two sites were 35 kilometres apart and were not located in the same employment area. It was not shown that public transport was easily accessible between the two municipalities during working hours, and carpooling was difficult to set up. (Cass. soc., 24 January 2024, no. 22-19.752)

Decline in the number of elected representatives since the Macron Ordinances

  • A 5.6% decline between the 2013-2016 electoral cycles (preceding the introduction of the Social and Economic Committee) and 2017-2020;
  • A 23.4% decline in companies with at least 300 employees. (Dares, 22 February 2024)

Workplace accident: fainting episode

A fainting episode reported after becoming aware of a summons to a preliminary disciplinary meeting at the employee’s home may be covered as a workplace accident. (CA Lyon, social chamber, 12 March 2024, no. 21/06160)

The mutually agreed termination agreement may be signed on the day of the meeting

The parties to a mutually agreed termination are not required to observe a minimum period between the meeting at which the parties agree on the termination of the contract and the signing of the agreement. It may therefore be signed on the same day as the meeting.

Indeed, Article L. 1237-12 of the Labour Code does not impose a period between the meeting and the signing of the termination agreement, nor does it impose an obligation to hold several meetings.

In this case, the meeting had taken place before the signing of the termination agreement, which ruled out any defect of consent. (Cass. soc., 13 March 2024, no. 22-10.551)

Nature of a collective agreement concluded at the level of a UES

A collective agreement concluded within the scope of a UES (single economic and social unit) is a company-level agreement. The collective agreement providing, in this case, for the possibility of using intermittent employment contracts was therefore valid. (Cass. soc., 13 March 2024, no. 22-14.004)