20 years of employment law in France

14 February 2023
Jean-Christophe Brun, Anaïs Edet and Anne-Sophie Houbart

Looking back over the past twenty years, one cannot deny that labour and employment law is a constantly evolving and dynamic field of law.

A retrospective observation enables us to identify, for illustrative purposes, the main examples of the most striking developments in these fields of law.

* * *

Working time – Solutions to meet your needs

• How many hours can your employees work before paying their over hours? Before the Aubry laws of 1998 and 2002, the legal working time was fixed at 39 hours per week.

• As of 1^st January 2000, for companies with more than 20 employees and 1^st January 2002 for the remaining companies, the legal working time was lowered to 35 hours per week.

• A number of arrangements for the calculation of working time have been introduced progressively, including the organization of working time based on a yearly number of worked days, created in 2000.

Remote work and right to disconnect – The future has been here all along

• Have your employees got used to remote working? Such a dispositive was initially governed by a national interprofessional agreement dated 2005, which only concerned regular remote working.

• The evolution of lifestyles led the legislator to consecrate in 2016, the employee’s right to disconnect, allowing them to achieve a better work-life balance, and to regularise and increase in 2017 the flexibility of the rules both on regular and occasional remote working. 

Internal investigation into harassment – Always dreamed of being a detective?

• How to avoid sexual and moral harassment? When a moral or sexual harassment situation is identified, there is in principle no obligation for the employer to hold an internal investigation.

• It is however recommended to proceed as such, and the French Supreme Court case law established some guidelines into good practices in 2022:
• An internal investigation cannot be simply dismissed because the employer only interviewed the employees who raised the complaint.
• It is not mandatory to hear the alleged harasser, confront them with the plaintiff employees or give them access to file and documents collected during the investigation.
• The employer is not obliged to involve the staff representatives in the internal investigation.

The increased protection of whistle-blowers – When good faith brings you protection

• How to react when facing a whistleblowing situation? Protection for whistle-blowers was introduced in 2013 and reinforced by a second law in 2016.

• A recent law of 2022 further strengthens the guarantees offered to whistle-blowers and requires, since 1^st September 2022, to include the existence of the whistle-blower’s protection system in the internal regulations (“Règlement intérieur”).

The non-compete clause – An effective protection of a company’s interests necessary implies money!

• Protect the company from competition is unfortunately not free! Since 2002, case law raised the financial counterpart of a non-compete clause as a mandatory condition. Otherwise, it will be null and void.

The termination of employment contracts – Many changes over the last twenty years:

• Looking for a fast and amicable way to terminate an employment contract? Since 2008, French labor law provides a new way to terminate the working relation with the mutual termination agreement (“rupture conventionnelle individuelle”). It is an autonomous form of employment termination where an employer and employee mutually agree to end the relation.

• Such a termination is also possible when various employees are involved at the same time: in 2017, the collective mutual termination agreement (“rupture conventionnelle collective”) was implemented.

• Facing economic difficulties in your company? In 2016, the legislator did not only complete the list of economic grounds that may justify a redundancy by considering those already accepted as such by the case law (the need to safeguard competitiveness and the cessation of activity) but has also clarified the notion of economic difficulties itself.

• Worried about reclassifying one of your employees in your premises abroad in case of economic redundancy or physical incapacity? Since 2017, the scope of reclassification is restricted to the sole national territory.

• Be careful, as an employee could be dismissed for a job abandonment, there is now a presumption of resignation since 2022, which is subject to a specific regime. The dismissal’s regime would not be automatically applied then!

The consequences of an abusive dismissal – Having more visibility on the cost of a litigation is therefore possible!

• Do you want to estimate the cost of a dismissal’s challenge from one of your employees? Before 2017, an employee who suffered an abusive dismissal was eligible to be granted a minimal amount of six month’s salary as damages, with no maximum amount foreseen, since that date, such damages are capped according to the size of the company and the seniority of the employee (the Macron scale). However, such a scale may be excluded in some cases.

The expansion of topics open to the negotiation of company agreements – The end of a monopoly

• You wish to adapt the conventional rules to your company? Before 2017, the hierarchy of regulations in French law provided for the primacy of agreements concluded at the branch of activity level (collective bargaining agreements).

• Since 2017, by principle, company agreements provisions prevail over the ones of the collective bargaining agreements.
  This rule however suffers two exceptions:
  • The collective bargaining agreement’s provisions still prevail on some specific topics (minimum wages, trial period, etc.).
  • The collective bargaining agreement may prohibit company level agreements from containing different stipulations (occupational risks, disabled workers, etc.).

Environmental, Economic and Social database – Give green a chance

• Environmental issues have made their appearance in companies. An Economic and Social Database was incorporated into the Labour Code by a 2013 law and gathers all the information communicated to the staff representatives to enable them to perform their consultative missions.

• The content of this database has been progressively extended by laws that came into force in 2015 and later in 2017.

• In 2022, a new environmental topic was integrated into the database, which then became the Environmental, Economic and Social Database and must include a new theme entitled “environmental consequences of the company’s activity”, enabling the staff representatives to be consulted in this subject, as part of the recurrent information and consultations.

* * *

It appears very clearly that employment and labour law has evolved tremendously over the past 20 years.

These constant changes show no sign of decreasing, leading us to believe that the next 20 years we will also witness major developments.

Alerion Avocats will be here at all times to guide and support you through every new development that may come your way, as it has for the last 20 years.

Jean-Christophe Brun, Partner, Anaïs Edet, and Anne-Sophie Houbart, Associates.