Tag archives: Dismissal

Comment faire face au Coronavirus en France?

Depuis le mois de janvier 2020, l’épidémie de Coronavirus COVID-19 s’est rapidement propagée à travers le monde, causant des milliers de décès.

Le Gouvernement français a réagi en plusieurs temps : après avoir émis des recommandations en matière de gestes barrière, il a ensuite pris la décision de fermer écoles et établissements accueillant des enfants, puis plus récemment a été ordonné le confinement généralisé de la population française et la fermeture de nombreux établissements jugés non indispensables, afin d’assurer la santé publique. Les dernières recommandations du Gouvernement pour les employeurs peuvent être consultées ici.

Dès lors, pour les entreprises ayant … Continue Reading

Ethical Veganism is a Protected Characteristic

An employment tribunal in the UK has held that ethical veganism is a protected characteristic under UK discrimination law.

In the UK an employee is protected from discrimination in the workplace under one of the nine protected characteristics set out in the Equality Act 2010.  This includes protection in respect of religion, religious belief and philosophical belief.

The case involves an employee at the League Against Cruel Sports (LACS). He raised concerns that the organisations pension fund invested in some companies that tested products on animals or otherwise infringed the central tenets of his ethical veganism.  The disclosure was made … Continue Reading

Employers should be careful about terminating employment around the holidays

While it’s always important for employers to be professional when dismissing an employee, employers would be wise to exercise extra care if they have to let someone go during the holiday season.

Canadian courts have long cautioned employers to avoid being unduly insensitive in the way they dismiss employees. Courts don’t look kindly on terminations that are, as the Ontario Court of Appeal once described, “cold and brusque.”

If an employer’s conduct during a dismissal is unfair or unduly insensitive and leads to an employee’s mental suffering, that employer could be on the hook for paying the employee “aggravated” or … Continue Reading

France: Le harcèlement sexuel susceptible d’être exclu en cas d’attitude ambigüe de la victime

Le harcèlement sexuel est défini, dans le Code du travail, par « des propos ou comportements à connotation sexuelle répétés qui soit portent atteinte à [la] dignité [du salarié] en raison de leur caractère dégradant ou humiliant, soit créent à son encontre une situation intimidante, hostile ou offensante ».

Le Code du travail prévoit également une assimilation aux faits constitutifs de harcèlement pour « toute forme de pression grave, même non répétée, exercée dans le but réel ou apparent d’obtenir un acte de nature sexuelle, que celui-ci soit recherché au profit de l’auteur des faits ou au profit d’un Continue Reading

France: Provocative acts do not necessarily fall within the scope of sexual harassment if the victim’s behaviour is ambiguous

The French employment Code defines sexual harassment as “repeated sexual comments or conduct that either violate the [employee’s] dignity because of their degrading or humiliating nature or create an intimidating, hostile or offensive situation against the employee“.

The French employment Code also assimilates to sexual harassment “any form of serious pressure, even non-repeated, exercised for the real or apparent purpose of obtaining an act of a sexual nature, whether it is sought for the benefit of the perpetrator or for the benefit of a third party“.

However, on 25 September 2019, the French Supreme Court (Cour … Continue Reading

What is the real reason for dismissal?

The Supreme Court in the UK has held in the case of Royal Mail Group Ltd v Jhuti that, where the real reason for dismissal is a protected disclosure which has been hidden from the person determining the dismissal, by a person in a position of responsibility, the dismissal is automatically unfair, even where the decision maker relied upon the reason for the dismissal in good faith.

In this case the employee made a protected disclosure to her line manager. As a result she was put under pressure to withdraw her allegations by that line manager, which she duly did.  … Continue Reading

Covert monitoring in the workplace – impact on an employee’s privacy

The Grand Chamber of the European Court of Human Rights (ECHR) has held that Spanish shop workers’ right to privacy under Article 8(1) of the European Convention on Human Rights was not violated when their employer obtained evidence of theft from covert CCTV footage of the employees.

The case involved five employees who worked as cashiers at a supermarket chain.  The employer noticed stock discrepancies and as part of the investigation installed CCTV cameras, both visibly within the store and hidden cameras at the checkouts.  Although customers and staff were aware that CCTV cameras operated, the employees were not aware … Continue Reading

France: The complex consequences of the occurrence of gross misconduct during the notice period

The general rule under French law is that when employment contracts are terminated, employees are entitled to a prior notice period, the length of which depends on the status of the employee (executive or non-executive), their length of service, and in some cases their age.

The applicable rules are generally set by the sector-wide collective bargaining agreement (a large majority of employers in France are subject to such collective bargaining agreements).

Employees may either be asked to work during their notice period, or be released from working during it. In the latter case, they are entitled to receive their full … Continue Reading

Plafonnement des dommages intérêts en cas de licenciement injustifié : la rébellion se poursuit

La Cour de cassation vient de déclarer conforme aux engagements internationaux de la France, le « barème Macron » qui plafonne les indemnités attribuées par un juge en cas de licenciement sans cause réelle et sérieuse.

Avant l’entrée en vigueur du « barème Macron », en cas de licenciement sans cause réelle et sérieuse , il appartenait au juge de fixer l’indemnisation visant à réparer le préjudice du salarié. Or, si la loi prévoyait un minimum d’indemnisation de 6 mois de salaire lorsqu’un salarié avait au moins deux ans d’ancienneté et travaillait dans une entreprise d’au moins 11 salariés, … Continue Reading

The beginning of a revolution (by the French lower courts) ?

French President Emmanuel Macron implemented a significant reform of the French employment code in late 2017, with the intention of providing employers greater flexibility and predictability in managing labour relations.

One of the most controversial measures was the creation of a grid applicable to the amount of indemnities due to employees for unfair dismissal, setting minima and maxima as a function of the length of service of the employee and the headcount of the employing entity.

Prior to the adoption of the grid, courts were free to determine the amount of damages payable to unfairly dismissed employees based on the … Continue Reading

Employees on Long term sickness – when can an employer dismiss?

The Employment Appeal Tribunal (EAT) has recently confirmed that employers should take care when dismissing an employee who is entitled to participate in a permanent health insurance (PHI) scheme and is absent from work by reason of long term ill health. It held that there is an implied term that an employer will not dismiss an employee for incapacity if that would prevent the employee being entitled to long term disability benefits.

Where an employee is absent due to ill health then on termination of employment, the employer may face a claim for unfair dismissal and for disability discrimination.   Capability … Continue Reading

Do managers typically think of personal liability when making decisions to dismiss? They perhaps should

Directors and senior managers and their employers should consider the recent Court of Appeal decision in the Osipov whistleblowing case very carefully. Briefly, by way of scene-setting, Osipov had made a series of protected disclosures and he was ultimately dismissed as CEO of the employer company pursuant to a decision of two non-executive directors (NEDS) of the company. He brought a  whistleblowing claim (for approx. £1.7m) against the company.  He also added the two NEDS as respondents on the basis that they had subjected him to a detriment for (amongst other allegations) their part in the decision to dismiss him.… Continue Reading

Italian Constitutional Court partially repeals Jobs Act rules – What’s next?

The Italian Constitutional Court (the “Court”) has partially repealed the “Jobs Act” reform of 2015 that introduced, among other things, a predictable calculation criteria for the monetary compensation to be paid in case of unlawful dismissal (2 months’ salary for each year of service, with a minimum threshold and a maximum cap).

The full decision of the Court has not yet been issued, but based on the text of a press release relating to the matter, the position of the Court is clear: indemnity for unlawful dismissal based exclusively on length of service goes against the constitutional principles of reasonability, … Continue Reading

Dismissal for misconduct cannot be based (solely) on anonymous reports

Anonymous reports have been mistrusted for a number of years in France, for historical reasons. While anonymity enables individuals to raise their voice more openly, without being the targets of retaliation measures, it can also drift into slander.

This explains a specificity of French law under which whistleblowers using ethicals lines are strongly encouraged to disclose their identity since generally speaking, , anonymous reports are not acceptable (although a limited number of exceptions are available).

It is only very recently that the French Supreme Court had to resolve a case involving an employee dismissed on the basis of anonymous reports.… Continue Reading

Can a dismissal letter be signed by an individual belonging to a holding entity?

Dismissal procedures are highly regulated in France including with respect to the identity of the individual who is entitled to conduct the procedure and sign the dismissal letter; such person must -by definition- be the “employer” .  However, some flexibility has been introduced over the years by French case law, and a recent decision of 13 June 2018 of the French Supreme Court is an illustration of such flexibility.

In this decision, the French Supreme Court held that a dismissal letter could be validly signed by the general manager of the holding entity, which is not the employing entity.

As … Continue Reading

Employees’ freedom of speech on the Internet is not without boundaries

Books, hotels, restaurants, products: you can find reviews and rating websites for just about everything on the internet – even employers. However, employees posting internet reviews of their employer should be careful and measured in what they say, or risk being subjected to disciplinary measures  – or even dismissal – if they abuse their freedom of speech.

A recent decision of the French Supreme Court provides an illustration justifying such a warning.

A communication agency was warned by one of its clients that a very negative review had been posted (anonymously) on a website specializing  in publishing  reviews and rating … Continue Reading

Lack of probity may provide grounds for dismissal for serious misconduct

French employment courts generally subject alleged reasons for employee dismissal to close scrutiny, particularly where dismissals are based on a breach of the duty of loyalty or of probity. Such breaches only constitute valid grounds for dismissal if they are genuine and rely on objective facts and behaviour which are attributable to the employee concerned.

From time to time, the French Supreme Court renders decisions recalling this principle. And here is a perfect example.

In the case in question, a bank client relationship manager was dismissed under the following circumstances:

The bank in which he was employed organized a client … Continue Reading

The fairness of a misconduct dismissal

A recent case has considered whether a school was entitled to summarily dismiss a head teacher for her failure to disclose a personal relationship with a convicted sex offender.

In the case of Reilly v Sandwell Metropolitan Borough Council Mrs Reilly was dismissed after she failed to disclose her friendship with a convicted sex offender, to the governing body of the school at which she was headmistress (the School). Mrs Reilly brought a claim for unfair dismissal to the Employment Tribunal which she lost, and her subsequent appeals at the Employment Appeals Tribunal, the Court of Appeal and the Supreme … Continue Reading

Recent developments in French employment law regarding financial institutions: How the French Government wants to enhance Paris’ attractiveness as a global financial place

Apart from certain provisions which may be tailored to the relevant situations negotiated by companies or sectors of business through collective agreements (subject to compliance with a number of basic rules and principles), French employment law does not include any specificities in relation to certain sectors of business.

In particular, financial institutions are subject to the same set of rules as any other French company.

However, this may change in the next few weeks or months.

As part of the process of ratification of President Macron’s ordinances reforming the French labour code,  the French National Assembly adopted on 23 November … Continue Reading

La présomption d’innocence peut-elle s’opposer au licenciement d’un salarié fondé sur des faits visés par une procédure pénale ?

La Cour de cassation a été saisie d’un dossier concernant un salarié de la société Euro Disney, qui avait été licencié à la suite de la découverte, par son employeur, et dans le cadre d’une enquête pénale, du fait que celui-ci avait acheté à l’un de ses collègues des stupéfiants.

En effet, au printemps 2012, une procédure d’instruction avait été ouverte pour rechercher des faits d’infraction à la législation sur les stupéfiants au sein du parc d’attraction. Plusieurs salariés avaient alors été mis en cause. Dans le cadre de cette procédure pénale, la société Euro Disney s’était constituée partie civile, … Continue Reading

When emotions run a-Mok: Trial judge’s decision upheld in Sweeting v Mok, 2017 ONCA 203

As an employer, you need to be careful what you say in the heat of the moment. That is the takeaway from the Ontario Court of Appeal’s recent decision in Sweeting v. Mok, 2017 ONCA 203.

In this case, there was a dispute between Ms. Sweeting and her employer, Dr. Lawrence Man-Suen Mok. After a heated conversation, Dr. Mok angrily told Ms. Sweeting to “Go! Get out! I am so sick of coming into this office every day and seeing your ugly face.”

On these words, Ms. Sweeting left the office and brought a legal action against Dr. … Continue Reading

French employment code reform: Focus on economic dismissals

French President Emmanuel Macron has signed five ordinances making important changes to several aspects of the French employment code. The ordinances, which were immediately published in the French Official Journal on September 23rd, 2017, are aimed in particular at providing employers more flexibility and predictability in labour-management relations.

Several provisions of this ambitious reform (the “Reform”) – numbering 159 pages and providing for 36 measures – are already in force.

Due to the significant amount of amendments to French employment regulation provided by the Reform, we have chosen to focus in our third article on the amendments relating to economic … Continue Reading

Where should an employment dispute be litigated when an employer’s business and an employee’s residence are located in different jurisdictions?

Where an employer hires an employee who resides in a different jurisdiction, the jurisdiction in which an employment dispute is litigated depends largely on where the employer carries on business.

In Koutros v. Persico USA, 2017 ONSC 3001, the employer, Persico USA Inc. (“Persico”) terminated the employment of Savvas Koutros, who was a General Manager of its Michigan, U.S. facility. Mr. Koutros resided in Windsor, Ontario and commuted to Michigan for work. Mr. Koutros filed a wrongful dismissal action in Ontario. Persico brought a motion to dismiss the claim on the basis that Michigan was the … Continue Reading

French employment code reform: Focus on dismissal procedure and indemnity

French President Emmanuel Macron has signed five ordinances making important changes to several aspects of the French employment code. The ordinances, which were published in the French Official Journal on September 23rd, 2017, are aimed in particular at providing employers more flexibility and predictability in managing labour relations.

Several provisions of this ambitious reform (the “Reform”) – numbering 159 pages and providing for 36 measures – are already in force.

Due to the significant amount of amendments to French employment regulations provided by the Reform, we have chosen to focus in our second article on the new regulations regarding changes … Continue Reading

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