Aside from the particular legislation prohibiting discrimination of employees on specific grounds such as age or gender, the French employment code does not provide for specific provisions concerning a more general principle which require the avoidance of inequality of treatment in the workplace. However, case law has progressively established this principle, particularly concerning remuneration, working conditions or employment benefits. As a result of such principle, differences of treatment between employees can only be validly enforced if it can be shown that such differences are justified by objective and relevant criteria, excluding any discriminatory intent. In principle, the scope of application of this principle is limited to employees within the same company or legal entity, meaning that employees of a company cannot claim the benefits granted to employees of a different company.

However, in this context, could such equality of treatment principle be extended in particular to situations where the different companies are bound by close ties, such as companies forming part of a group?

In a recent case (decision of the Supreme Court dated 16th September 2015), certain subsidiaries belonging to a group of companies had implemented a supplementary pension scheme for the benefit of their employees. In view of harmonizing the different existing schemes, a collective agreement had been negotiated at the group level so as to create a common pension fund including the companies which were already subject to a supplementary pension scheme and those which might decide to join the new scheme on a voluntary basis. Among other conditions in order to be able to benefit from such pension scheme was that of being on the payroll of a participant company as at 31st December 1989.

In this context, an employee of one company of the group was refused the benefit of such retirement plan on the ground that the company which employed him on 31st December 1989 had not participated in the group supplementary pension scheme. Subsequently, the employee lodged a claim arguing a breach of the equality of treatment principle since other employees within the group had been allowed to benefit from the plan (as they were employed by a company participating in the plan as at 31st December 1989).

The Supreme Court dismissed the employee’s claim holding that the equality of treatment principle cannot be applied between employees of different companies, regardless of the fact that such companies belong to the same group. By doing so, the Supreme Court confirmed previous rulings in which the application of the equality of treatment was not extended to employees belonging to different companies, irrespective of the circumstance that such companies applied the same industry-wide collective bargaining agreement or that they belonged to the same group. The present decision is therefore perfectly in line with previous case law and should be fully approved as employment legislation and obligations are principally apprehended through the employer’s legal personality.

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