Employer-ordered medical counter-examination
The decree of 5 July 2024 on the medical counter-examination incorporates into the Labour Code the terms and conditions of the medical counter-examination ordered by the employer, previously governed by case law:
The employee’s obligation to inform the employer of their place of rest. The employee must inform the employer, as soon as their sick leave begins and whenever there is any change, of their place of rest if it differs from their home and, if their sick leave bears the mention "free to come and go", of the hours during which the medical counter-examination may take place (art. R. 1226-10 of the Labour Code).
Organisation of the medical counter-examination by the employer. The counter-examination is carried out by a physician appointed by the employer, who rules on whether the sick leave is justified and on its duration (art. R. 1226-11 of the Labour Code). It may be organised at any time during the sick leave and, at the physician’s choice: either at the employee’s home or at the place provided, with no notice period required, outside authorised hours of absence or the hours provided where the sick leave bears the mention "free to come and go"; or at the physician’s practice, by summons giving a definite date. However, if the employee is unable to travel, in particular owing to their state of health, they must inform the physician, specifying the reasons (art. R. 1226-11 of the Labour Code).
Communication of the physician’s conclusions to the employer. At the end of the medical counter-examination, the physician informs the employer either of whether the sick leave is justified or unjustified, or of the impossibility of carrying out the check for a reason attributable to the employee, in particular their refusal to attend the summons or their absence during the visit (art. R. 1226-12 of the Labour Code). The employer forwards this information to the employee without delay (art. R. 1226-12 of the Labour Code). (Decree no. 2024-692 of 5 July 2024, Official Journal 6 July 2024)
Particulars to be included in the invitation to representative trade unions to negotiate the pre-electoral agreement protocol
Since 8 June 2024, any invitation must specify (art. D. 2314-1-1 of the Labour Code): the name and address of the employer and, where applicable, the designation of the establishment; the title and identifier of the applicable industry-wide collective agreement; the place, date and time of the first meeting to negotiate the protocol. (Decree no. 2024-514 of 6 June 2024, Official Journal 7 June 2024)
Telework abroad: dismissal for gross misconduct
The fact that an employee teleworked abroad without having obtained the prior agreement of their employer, adopted a disloyal attitude by concealing it, failed to return to their post on-site despite a formal notice, and claimed to have returned to France, justifies a dismissal for gross misconduct. (Paris Labour Court, 1 August 2024, case no. 21/06451)
Psychological harassment: an internal investigation is not necessarily mandatory
The fact that an employer did not order an internal investigation following an employee’s report of facts characterised as psychological harassment cannot constitute a breach of its safety obligation. In this case, the employer had taken the necessary measures to protect the employee’s health and safety, by taking a position in a dispute between her and a colleague of the same hierarchical level and by providing clarification in response to her questions about her position within the new organisation of the department. (Cass. soc., 12 June 2024, no. 23-13.975)
Protected employee: no referral to the administration at the end of a fixed-term contract without a renewal clause
The employer of a protected employee does not have to refer the matter to the Labour Inspectorate in the case of the expiry of a fixed-term contract that contains no renewal clause. (Cass. soc., 10 July 2024, no. 22-21.856)
Economic grounds: assessment of the sector of activity
A company’s specialisation in a specific field within a group is not sufficient to exclude its attachment to a broader sector of activity, within which the economic difficulties, technological changes or the need to safeguard the company’s competitiveness must be assessed. (Cass. soc., 26 June 2024, no. 23-15.503)
Return-to-work medical examination: the employee’s return to their workstation is not a prerequisite for organising and holding the return-to-work examination
The initiative of referring the matter to the occupational physician for a return-to-work medical examination lies with the employer, where the employee, who meets the conditions of article R. 4624-3 of the Labour Code to benefit from it, requests it and makes themselves available so that it may take place. The employer cannot make the holding of the return-to-work examination conditional on the employee returning to their workstation. (Cass. soc., 3 July 2024, no. 23-13.784)
Collective performance agreement (CPA): the principle of good faith in negotiations
On pain of nullity, negotiations must be conducted in good faith. The very nature of the CPA, whose clauses replace those of the employment contract that are contrary to it, requires this. In the first decision (no. 23/12256), the employer had negotiated the CPA with the company’s two representative trade unions, namely UNSA and CGT. Following these negotiations, the employer had set aside the CGT to finalise the agreement. The CGT then referred the matter to the judicial court seeking a declaration of nullity. The Court of Appeal upheld the nullity of the agreement. The reopening of negotiations and the incorporation of adjustments proposed by the CGT into the agreement, after the matter had been referred to the court, were not sufficient to consider that the negotiations had been conducted in good faith. In the second decision (no. 23/12260), the employer had negotiated the CPA with the company’s three representative trade unions. The CGT and UNSA, as non-signatories, then referred the matter to the judicial court to seek the nullity of the agreement. The Court of Appeal dismissed the CGT’s appeal on the grounds that the negotiation of a method agreement was optional, that the principle of good faith concerned only the conditions of negotiation, and that these had been transparent. The Court also held that the CGT had been informed of the proposals of the other trade unions and had had the time necessary to acquaint itself with the terms of the agreement, consult its members and formulate counter-proposals. (Paris Court of Appeal, 4 July 2024, no. 23/12256; Paris Court of Appeal, 27 June 2024, no. 23/12260)