Constructive dismissal (“resiliation judiciaire”): reversal of the burden of proof with regard to prevention and safety in the event of a work accident

In constructive dismissal proceedings, the principle is that the employee bears the burden of proof, having to demonstrate that the employer's breaches are, inter alia, sufficiently serious to prevent the employment contract to be pursied.

In its ruling of February 28, 2024 (n° 22-15.624), the French Supreme Court made an exception in cases where an employee who has suffered a work accident (in this case, due to a failure to supply the required equipment) or a work-related illness, invokes one or more failings on the part of the employer with regard to prevention and safety rules.

In its decision, the Court ruled that when an employee alleges a failure by the employer to comply with preventive and safety rules that led to a work accident, it is up to the employer to justify having taken all necessary measures to ensure the safety and protect the health of the employee.

To the best of our knowledge, this is the first time that the Court has ruled in this way in the case of constructive dismissal, although it had already done so in the case of a formal notice of termination of the employment contract by the employee (“prise d’acte de la rupture du contrat de travail”) (Cass. Soc., 12 January 2011, n° 09-70.838). The Court's position is therefore consistent with its previous case law.  

Modification of the employment contract and assessment of the geographical area: a new criterion established by the Fench Supreme Court?

Unless provided for in the employment contract, a change in the place of work is, in principle, a change in working conditions that does not require the employee's consent, as long as the change takes place within the same geographical area, as the French Supreme Court has ruled.

After adopting a subjective assessment (i.e., taking into account the employee's personal situation) of this notion of geographical area, the French Supreme Court came back to a more objective appreciation.

The criteria traditionally used to assess the geographical area are the employment pool, the distance between workplaces and their public transport connections.

However, in a ruling issued on January 24, 2024 (n° 22-19.752), the French Supreme Court seems to have reintroduced a touch of "subjectivity", ruling that the geographical sector must also take into account the tiredness and expenses generated for an employee, newly bound to use her personal car, due to the working hours and distance between her former workplace and the new one.

In this case, considering that the old and new workplaces were only 35km apart in two towns in the same French administrative district linked by an expressway, meaning a 36-minute car journey, an employer considered that they were in the same geographical area and that, consequently, the employee's refusal to travel to her new workplace justified her dismissal for serious misconduct. Reversely, the Court of Appeal, approved by the Court of Cassation, considered that the new place of assignment was not in the same geographical area as the previous one, and that the change in the place of work should therefore be considered as a change to the employment contract, which the employee was entitled to refuse.

The Supreme Court will therefore have to confirm its position on the addition of this new criterion of tiredness and financial constraints for an employee using her business car.

New obligations for the employer in the event of proposing an indefinite-term contract following a fixed-term contract or a similar or equivalent assignment contract 

Decree no. 2023-1307 of December 28, 2023, on the refusal by an employee of an offer of an indefinite-term contract at the end of a fixed-term contract, incorporated two new articles R. 1243-2 and R. 1251-3-1 into the French Labor Code, introducing a new procedure to be followed by employers offering an indefinite-term contract following respectively a fixed-term or temporary contract.

However, this procedure only applies when the employer offers the employee a permanent contract to hold a position that meets the following conditions:

• For employees on fixed-term contracts, the job offered on an indefinite-term contract must be an identical or similar position with at least equivalent remuneration for equivalent working hours, within the same classification and with no change in workplace (article L.1243-11-1 of the French Labor Code).
• For employees on temporary contracts, the position offered under a permanent contract must simply be identical or similar, with no change in workplace (article L.1251-33-1 of the French Labor Code).

It is therefore the employer's responsibility to notify the employee of the proposal before the end of the fixed-term or temporary contract, by registered letter with acknowledgement of receipt, by hand-delivered letter against acknowledgment, or by any other means giving proof of the date of the receipt.

In the proposal letter, the employer must set a reasonable time limit for the employee to decide on the indefinite-term contract proposal, and indicate that failure to reply within this time limit will be considered as a refusal of the proposal.

In the event of an express or tacit refusal by the employee, the employer will then have one month to inform France Travail (the French administration in charge of the unemployment insurance) of this refusal via a dedicated platform accessible at the following address: https://www.demarches-simplifiees.fr/commencer/refus-de-cdi-informer-francetravail. This information must include a description of the proposed job and details of the extent to which the proposed job is identical or similar to that of the current assignment or fixed-term contract. 

If France Travail considers that the information provided by the employer is incomplete, it will send a request for additional information, to which the employer will have 15 days to respond.

On receipt of this information, France Travail will inform the employee of the consequences of his refusal on his entitlement to unemployment insurance.

This procedure enables the application of the measure introduced by the " Labor Market Law ", which deprives employees on fixed-term or temporary contracts of their entitlement to unemployment insurance if they refuse a permanent contract for the same or similar job twice within 12 months (article L.5422-1 of the French Labor Code).

Authored by Alexandra Tull.