Tag archives: employer’s liability

End of the lockdown in France: what are the precautions for employers operating in France?

On 7 May, the French Prime Minister announced the date chosen for the start of the “de-confinement” phase for France, namely 11 May 2020.

The lockdown, which started on 17 March, lasted almost 2 months during which some shops and businesses were closed, and the vast majority of companies operated on the basis of remote working. The lockdown weighed heavily on the national economy, with 12.2 million employees now covered by the short-time working scheme (i.e. six out of ten jobs in the private sector).

While public health has obviously been the government’s primary consideration in setting the plan to … Continue Reading

La France sort du confinement : Quelles précautions pour les employeurs ?

Le 7 mai dernier, le Premier Ministre a annoncé la date retenue pour le début de la phase de déconfinement des Français dans le cadre du plan de lutte contre le Covid-19, à savoir le 11 mai 2020.

Le confinement, qui a commencé  le 17 mars dernier, aura duré près de 2 mois durant lesquels certains commerces et entreprises ont été fermés, et la grande majorité des entreprises a fonctionné sur la base du télétravail. Le confinement aura lourdement pesé sur l’économie nationale, 12,2 millions de salariés étant aujourd’hui couverts par le dispositif du chômage partiel (soit six emplois sur … Continue Reading

France combats the pandemic

Since January 2020, Coronavirus COVID-19 has spread rapidly around the world, causing massive disruption to business and everyday life as well as thousands of deaths.

The French Government has reacted in several stages. After issuing recommendations for barrier measures, it decided to close schools and more recently, it ordered the general confinement of French people and the closure of many establishments deemed non-essential in order to protect public health. The Government’s latest recommendations for employers can be found here (available in French only).

Consequently, for companies operating in France, three types of employees can be distinguished (excluding sick employees, who … Continue Reading

UK: An employer’s duty to its employees in the context of Coronavirus

The World Health Organisation has declared that the Coronavirus is a public health emergency of international concern and the first reported cases have appeared in the UK. What steps should employers be taking in relation to their employees?

Travel to affected areas

Employers owe a duty of care to their employees to take reasonable steps to protect their health and safety and to provide a safe place and system of work. Employers should therefore not insist that an employee travels to an area affected by the virus for work related purposes.  Government advice should be followed, particularly for those UK … Continue Reading

De nouvelles obligations pour les plateformes de mise en relation

Les plateformes de mise en relation (comme Uber ou Deliveroo), qui sont de plus en plus utilisées en France, font pourtant l’objet de nombreuses critiques, principalement fondées sur les conditions de travail des travailleurs indépendants qu’elles utilisent dans le cadre de leur activité.

Le Gouvernement français s’est donné pour mission d’encadrer l’activité de ces plateformes, en particulier en ce qui concerne leur responsabilité vis-à-vis de ces travailleurs indépendants.

La loi Travail du 8 août 2016 a créé, au sein du Code du travail, une partie dédiée aux travailleurs utilisant ces plateformes, et a mis à la charge des plateformes une … Continue Reading

La perte de contrôle d’un camion par un salarié n’exclut pas la faute de l’employeur

Dans le cadre de leurs missions, les salariés doivent respecter l’ensemble des règles (notamment de sécurité) applicables. En particulier, les chauffeurs routiers sont astreints au respect du Code de la Route.

Mais l’employeur est également responsable de la sécurité de ses salariés et, si l’obligation de sécurité n’est désormais plus une obligation de résultat, il n’en demeure pas moins que la responsabilité de l’employeur peut être engagée au titre de l’obligation de sécurité lorsque celui-ci a manqué à ses obligations à ce titre.

Dans le cadre de cette affaire, le salarié, chauffeur d’un poids lourd, avait perdu le contrôle de … Continue Reading

Death during sexual intercourse qualified as a work-related accident

During a business trip to a construction site, an employee was found dead of a heart attack in a room after having had sexual intercourse with a “complete stranger” he met during the day. The employer completed the usual formalities by informing the social security authorities of the death and the circumstances. The social security authorities decided to treat the death as being work-related, which was contested by the employer.

The company’s arguments before the Paris Court of Appeal were as follows:

– the employee’s death occurred when he had knowingly interrupted his mission for a personal reason, independent of … Continue Reading

What are an employer’s chances of overcoming an employee’s claim for overtime in France ?

The basic working time arrangement in France is 35 hours per week, and although there are a number of alternative working time arrangements potentially available, this is still the one that applies to the majority of French employees. However, this is not a maximum working week – employees working beyond that amount are entitled to overtime.

Employers must be able to prove the actual number of hours worked by their employees and must therefore ensure such hours are properly recorded. In the absence of proper records, the employer may have difficulties in overcoming a claim for overtime payments made by … 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

The dangerous combination of the right to disconnect and the concept of on call-duty

French law implemented in 2017 the “right to disconnect” from digital tools, requiring employers to limit employees’ use of digital tools outside of office hours.

The purpose of this legislation is to protect the employees’ work-life balance and their right to rest periods.

The law did not provide details of how employers should implement the right to disconnect as the employer is supposed to negotiate such modalities with its unions. In the absence of agreement, the employer is required to prepare a charter, after having consulted the works council or the staff representatives.

The law did not provide any specific … Continue Reading

Tort liability: other grounds for bringing actions against a parent company in French employment litigation

It is a fact of life in French employer-employee relations that employees have no hesitation in bringing actions against their employer, in particular following termination of an employment, and that litigation is therefore not just a virtual weapon. Not only do employees sue their employer but, where the employer is a part of a group of companies, they have sought to impose liability on the group parent company in such employment litigation where they consider that the parent company was too involved in the management and decisions of its French subsidiary and that such involvement had proven detrimental to the … Continue Reading

Issues of employment status: pseudo self-employment and hidden personnel leasing in Germany

German labour law follows the “all or nothing” principle: Labour law regulations presume an existing employment relationship between employer and employee. If no such relationship exists, protective labour law regulations cannot be applied (with a few exceptions e.g. in the case of managing directors of a “GmbH” (limited company)). Assessing whether an employment relationship exists requires evaluating the nature of the relationship in question and assessing it against the legal definition of “employment”.

As in many other countries, Germany witnessed the trend of reducing core workforces in favour of a more flexible use of external resources. This in particular lead … Continue Reading

Criminal Finances Act 2017 – Employers liability

The Criminal Finances Act 2017 came into force in the UK on 30 September 2017. It introduces new corporate criminal offences of failing to prevent an employee, agent or any other person who is performing services for the organisation from criminally facilitating the evasion of tax, whether the tax is owed in the UK or in a foreign country.

The new offence does not alter what is criminal, but changes who can be held to account for the acts. The new offences are a reaction to the Government’s frustration at the difficulty in attributing criminal liability to companies and partnerships … 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

Mitigation Income and Wrongful Dismissal Damages – The Court of Appeal Muddies the Waters

The Wrongful Dismissal – What Happened?

Esther Brake worked for McDonald’s for over twenty-five years, first in Cornerbrook, Newfoundland, and then as a restaurant manager in Ottawa. She had received nothing but excellent reviews for years, but in 2011 she was suddenly told her performance was inadequate and that she had two options: accept a demotion or be fired. Ms. Brake refused the demotion and filed a successful action for wrongful dismissal.

The most interesting issue in this case was not the question of whether the dismissal was justified or not, but whether the trial judge erred by not subtracting … 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

Le devoir de vigilance : une obligation renforcée

L’obligation de vigilance est une obligation faite aux entreprises de prévenir les risques sociaux, environnementaux et de gouvernance lié à leurs activités. La loi du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre, publiée le 28 mars 2017 au Journal Officiel, renforce l’obligation de vigilance.

Le devoir de vigilance s’applique aux entreprises françaises employant, à la clôture de deux exercices consécutifs, au moins 5 000 salariés en France ou 10 000 salariés dans le monde (filiales comprises).

Ces sociétés doivent établir et publier un plan de vigilance afin d’identifier et de … Continue Reading

A new duty of care for the most significant companies in France

The duty of care is an obligation for companies to prevent social, environmental and governance risks related to their activities. A very recent law published on 28th March 2017 has reinforced such duty of care.

The duty of care concerns French companies employing, at the end of 2 consecutive fiscal years, at least 5,000 employees in France or at least 10,000 employees in the entire world (the headcount should be assessed including the employees of their subsidiaries).

These companies must establish and publish a “duty of care plan” to identify and prevent environmental, human rights, health and safety and corruption … Continue Reading

When an employer hides another employer

Dual employment is a sensitive subject in French employment law as it enables employees to raise claims against a different employer from that with which the employment contract was signed.

The matrix-type organisation of groups of companies, which has become the rule, can have adverse consequences if employees have the feeling that they are employed by the group as a whole and not by the company to which they are bound under their employment contract).

As long as the economic situation of the employer is flourishing, the risks are remote. However, issues generally arise when the French member company of … Continue Reading

New protection of French whistleblowers under the Sapin II Law

Much attention was focused recently on President Obama’s decision, in the final days of his presidency, on commuting the sentence of Chelsea Manning, who provided certain classified information to WikiLeaks. In France, new legislation has recently been passed and implemented harmonizing the protection of whistleblowing employees (https://www.legifrance.gouv.fr/affichTexte.do;jsessionid=4BBFD240827AF0FD9A6340FF254E6F1B.tpdila21v_3?cidTexte=JORFTEXT000033558528&categorieLien=id).

Who is concerned?

Under the new regulation, whistleblowers are defined as “any individual who reveals or reports, acting selflessly and in good faith, a crime or an offence, a serious and clear violation of an international commitment which has been ratified or approved by France or of an unilateral act of … Continue Reading

Ontario Court of Appeal rules on the Duty to Mitigate in Howard v. Benson Group

The Ontario Court of Appeal recently considered the common law principles of reasonable notice and the duty to mitigate in the context of fixed-term employment contracts in Howard v Benson Group Inc. Howard, the plaintiff, was employed at an automotive service centre pursuant to a five-year fixed term contract. He was terminated without cause around two years into his contract. Howard brought an action for wrongful dismissal and breach of contract, seeking damages equal to the salary he would have received for the remainder of the fixed term of his contract. On a motion for summary judgment, the judge … Continue Reading

Second Circuit’s decision expands liability for discrimination under “cat’s paw” doctrine

You may be familiar with the Aesop fable in which a monkey convinces a naïve cat to burn his paw in order to pull chestnuts from a hot fire for their mutual satisfaction but then eats all the chestnuts himself. This “cat’s paw” doctrine, as it has been coined in employment litigation, has been applied by courts where a decision maker is manipulated by an employee with bad motives into taking an adverse action against another employee.

The United States Supreme Court first validated employer liability under the “cat’s paw” theory in Staub v. Proctor Hospital in 2011, where it … Continue Reading

Improper Comments on Social Networks: A Serious Cause Justifying Dismissal?

The employment contract of a “Montreal Impact Academy’s U14” team coach was recently terminated as he made racist comments on his private Facebook page following the defeat of France against Portugal in the Euro 2016 final. In a news release, the Montreal Impact shortly dissociated itself from these comments, considering that they were totally unacceptable and against the fundamental values of the club and of the Academy.

This case is interesting in that it raises the issue of whether an employer can lawfully dismiss an employee having an improper conduct on the Internet. It serves as an accurate example of … Continue Reading

To what extent can employers be held vicariously liable for the acts of their employees and others in France?

The issue of the liability the employers can face as a result of the acts and/or omissions of their employees is a recurring aspect of employee management in France.

There are no specific employment rules per se governing the extent to which the employers can be held vicariously liable for the acts of their employees. However, the general tort rules applicable in France contain specific provisions pursuant to which a person (or legal entity) is liable not only for the damages he caused by his own behaviour, but also for that which is caused by the behaviour of persons for … Continue Reading

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