A settlement agreement following an employee’s report of sexual harassment is invalid / Paid leave: who bears the burden of proof?

Published on : 31/12/2021 31 December Dec 12 2021

A settlement agreement following an employee’s report of sexual harassment is invalid

The French Supreme Court ruled that when an employee has reported being subject to sexual harassment, the settlement agreement signed by the employee is invalid if the employer has not taken any measures to protect the employee.

In this decision dated November 4th 2021, the court held that the employee had signed the settlement agreement under duress because she did not have any other choice in order to protect her health.

For memory, employers in France must take measures to prevent sexual harassment. This includes policies, training and in some cases naming a “sexual harassment” contact person. Also, all claims of sexual harassment must be investigated.

Paid leave: who bears the burden of proof?

A recent decision by the French Supreme Court offers a reminder on employers’ obligations in enabling employees to take their paid leave entitlements and the importance of documenting this. 

After the termination of his employment contract, an employee working as a sports instructor, claimed compensation for paid holidays which he argued he had not taken. The employer, on the other hand, argued that the employee had already taken his paid leave from 9 to 30 June 2014, as was mentioned on his pay slip. The employee provided certificates from two of his colleagues stating, among other things, that he was present at the stadium on 28 June. The employee's claims were dismissed by the Court of Appeal which considered that the documents did not provide "sufficient evidence of work during this period", as the two certificates stating that the employee was present at the stadium on 28 June, i.e. on a weekend, could just as well relate to a voluntary participation to follow his team. 

The Supreme Court struck down the appellate decision, criticizing the court of appeal for having reversed the burden of proof in terms of taking paid leave and reiterated that it is the employer who must prove that paid leave was actually taken, and not the employee. In the event of a dispute, employers cannot simply show that they have paid their employee (by producing pay slips). They must also prove that they have taken the necessary measures to ensure that employees actually takes their paid leave.

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