Tag archives: Employee

Issues of employment status in France

France makes a distinction between those individuals with an employment status and independent workers.

Under French employment law, an employee is defined as an individual who works pursuant to an employment contract (and under the subordination of the employing entity) and receives a salary in return for his or her services. Unlike an employee, a consultant remains independent from his or her client and is not subject to the supervision of an employer

The category in which a person falls is of particular importance as in one case, the individual will enjoy all the protection and rights arising from French … 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

Information collected via Facebook cannot – always – be used as evidence against an employee

Technology is ever-changing, and while in the past evidence of an employee’s misconduct was based mainly on “physical” witnesses and observations, employers might now be tempted to use data obtained through social media as evidence against their employees.

At the present time the French Supreme Court has not had many occasions to clarify the manner in which evidence obtained by French employers through the Facebook website (and more particularly on the “wall” of an individual) should be treated by the courts.… Continue Reading

The #MeToo Movement: When Employees Take Their Complaints to Social Media

As we are all aware, the news has been populated with stories concerning allegations of sexual harassment and misconduct, particularly in the entertainment and media industries as well as government institutions. These stories have contributed to the “#MeToo” movement, which originated on Twitter and other social media websites in late 2017 and has since become a widespread message on social media encouraging individuals to share their stories and speak out against sexual harassment and abuse. But while its purposes are laudable, the #MeToo movement is a touchy subject for employers, who ever-more-frequently find themselves accused of sexual harassment or other … Continue Reading

Un salarié protégé peut-il contester la rupture conventionnelle homologuée dont il a fait l’objet devant le juge judiciaire ?

Les salariés protégés (représentants du personnel, délégués ou représentants syndicaux, salariés mandatés, etc.) bénéficient d’un statut particulier, eu égard à leur rôle dans l’entreprise. A ce titre, toute modification, et a fortiori, rupture de leur contrat de travail doit être autorisée par l’inspection du travail.

La conclusion d’une rupture conventionnelle homologuée, quand bien même il s’agit d’un mode de rupture qui suppose l’accord du salarié, ne déroge pas à cette règle. Afin que la rupture conventionnelle soit valablement conclue, l’employeur doit par conséquent solliciter et obtenir l’autorisation de l’inspection du travail.

Cette procédure a une incidence directe sur le contentieux … Continue Reading

French employment code reform: Focus on the social and economic committee

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. They were supplemented by a number of decrees (some additional regulations should be published soon).

The law ratifying these ordinances is currently being discussed before the Senate. Pending its publication, all provisions of this ambitious reform (the “Reform”) are applicable.

Due to the significant amount of amendments to French employment regulation provided … 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

Employment and Financial Services

On 7 March 2016 the Senior Managers and Certification Regime (SM&CR) was introduced to improve accountability in the financial services sector.   The SM&CR applies to UK banks, building societies, credit unions, PRA designated investment firms and branches of foreign banks operating in the UK.  It consists of three elements: the Senior Managers Regime (SMR), the Certification Regime and the Conduct Rules, all of which have an impact on the employment of individuals.   It is proposed to extend the regime to all firms regulated or authorised under the Financial Services and Markets Act 2000, although the exact date for that implementation … 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

What rights does an employer have to suspend an employee in France?

Under French labour law, there are limited circumstances under which employers may suspend employees.

One of the main obligations imposed on employers is to provide employees with work to be performed  (and obviously to pay them in consideration for their work). Breach of this requirement may be considered as a ground for breach of contract, and the relevant employee can claim the equivalent of constructive dismissal which  in practice has the same consequences as an unfair dismissal).

In practice, there are two types of suspensions provided by the French labour code:

1. Disciplinary suspension (“mise à pied disciplinaire”)

Continue Reading

Working as a freelancer and as an employee for the same company

In Germany, the distinction between employees and independent contractors (also referred to as freelancers) is particularly important. For example, the question of whether a person is an employee or an independent contractor determines whether they are protected against unfair dismissal and also affects how they are treated for statutory social security and income tax purposes. The key factor which indicates that an individual is an independent contractor is that he performs the agreed services working independently. By contrast, an employee is characterised by his dependency on the employer. An employee performs his work in accordance with the employer’s instructions and … 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

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

French employment code reform: Focus on homeworking

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 first article on the new regulations regarding homeworking. … Continue Reading

Use of social media in France: Employee’s rights and obligations

The impact of the use of social media in the workplace has regularly given rise to controversies and debates as how this subject is to be handled by a company’s management. The current state of employment law is still not entirely settled in this respect. It is however possible to provide some guidance on the most common issues arising from such use with regard to employment law (data protection regulations will not be considered in this article).

Access and control of social media in the workplace

As a general rule, employees are allowed to access the internet for non-professional purposes … Continue Reading

Significant changes to French employment code to enter into force no later than January 1st, 2018

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 – numbering 159 pages and providing for 36 measures – are already in force.

The amendments to existing legislation effected by the Ordinances are built around the following principles defined by the French Government:

  • giving precedence to micro-businesses (TPE) and to small and medium-sized companies (PME);
Continue Reading

What is the latest on employees’ rights in the event of redundancy in Germany?

In business, the restructuring of a company (such as by the closure of an individual business unit or a necessary reduction in the number of staff) may result in an employee’s redundancy. However, dismissing an employee by reason of redundancy has strict prerequisites under German law.

The main requirements which must be observed under German law for a dismissal based on redundancy are as follows:

  • In business units with more than ten employees (more than five if hired before 31 December 2003), and if an employee has been at the company for more than six months, a specific justification for
Continue Reading

Record number of mutual termination agreements signed in France

According to the data published by the French labour administration, mutual termination agreements (ruptures conventionnelles) have never been so popular. Indeed, in June 2017, more than 35,700 mutual terminations agreements have been validated by the French labour Administration.

But why are mutual termination agreements so popular?

First, mutual termination agreements represent – for the employer and the employee – a quick and easy way to terminate an incompatible working relationship.

The procedure for entering into a mutual termination can be summarized as follows:

  1. Invitation to a negotiation meeting
  2. Agreement between employee and employer on the principle of a
Continue Reading

The (latest) reform of the French employment code is ongoing

As part of candidate Emmanuel Macron’s program during the Presidential elections campaign, a substantial reform of the French employment Code was promised. After his election as President, French commentators anticipated new changes would be implemented quickly, given Emmanuel Macron’s indications that he wished to go ahead as soon as possible, without too much debate before the French Parliament.

This reform is now on track, and will be implemented through a specific procedure:

  • an “enabling” law (loi d’habilitation) shall be voted by Parliament to set a specific framework for the reform;
  • ordinances (ordonnances) will be published after
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ContractorCheck Canada App

Employee or contractor?

The ContractorCheck Canada application (App) is a practical tool developed by the Norton Rose Fulbright employment and labour team. It is designed to help employers accurately determine the status of their workforces and whether they should be considered contractors or employees.

Defining employees versus contractors can be sometimes challenging; improperly classifying them may have consequences on your business operations. Norton Rose Fulbright has lauched the ContractorCheck Canada App to help employers navigate through their working relationships more effectively as well as mitigate the legal risks that may prevail.

Check it out!

The app is hosted on our … Continue Reading

What French employers must do in case of heatwave?

Summer is coming and temperatures are rising and may become unbearable, especially for these employees working outdoors / performing manual labour.

Too much warmth can affect employees and can cause exhaustion, headache, fainting, or dehydration. Therefore the impact on employees’ health can be significant.

From a French employment law perspective, employers have a very general and broad obligation to take any measures necessary to ensure their employees’ health and safety at work, at any time. They are also required to adapt these measures to take into account any major circumstance, particularly heatwaves.

Anticipate heatwaves

Employers must first take prevention measures, … Continue Reading

Do employees who are pregnant or on maternity leave enjoy any special protection in the event of redundancy in Germany?

This post was also contributed by Tony Rau, Trainee, Norton Rose Fulbright LLP (Munich).

German law provides for extensive protection of pregnant employees and employees on leave in connection with pregnancy. Regarding the latter, German law distinguishes between maternity leave (i.e. 6 weeks before until 8 weeks after childbirth – or 6 weeks before until 12 weeks after childbirth in certain cases) and parental leave (i.e. longer periods of leave granted after childbirth in order to care for newborns or children). The relevant rules are primarily aimed at protection against dismissal, but also protect against, for example, certain working conditions … Continue Reading

Do employees who are pregnant or on maternity leave enjoy any special protection in the event of redundancy in France?

As is the case in many other countries (particularly countries in the European Union, which are covered by EU Directive 92/85/CEE dated 19 October 1992), France has implemented a full set of rules with the goal of protecting pregnant employees or employees on maternity leave against illegitimate termination of their employment contract. These protections also apply in the context of redundancies.

The rules run to the benefit of all female employees, whether employed on a full time or part time basis, including both those on an indefinite term and fixed term employment contracts. However, application of the protective provisions to … Continue Reading

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