Dismissal of an employee's refusal to adhere to the "fun and pro" culture of his employer ruled null and void | Transfer of professional emails to personal email | Employees’ travel time can be effective working time

Published on : 10/01/2023 10 January Jan 01 2023

Dismissal of an employee refusing to adhere to the "fun and pro" culture of his employer ruled null and void

A consultant (manager in a consultancy firm) was dismissed due to various reasons including his expressed misalignment with the company’s “fun and pro” culture and vocal criticism. He claimed that his dismissal was null and void as it was at least in part motivated by his opinion against said culture. He underlined the fact that the firm’s culture involved Friday drinks, week-end parties and various events entailing drinking, and stressed that the partners encouraged inappropriate practices such as bullying and arguably overly close relationship between employees. 

In a decision rendered on November 9th, 2022, the French Supreme Court ruled in his favor. It reiterated the fact that employees enjoy freedom of expression which is a constitutionally protected right and cannot be disciplined for exercising this right in a non-abusive manner. The court also stressed that even if there were other grounds supporting the dismissal, the fact that one of the motives related to the employee’s freedom of expression was enough to trigger annulment, in the absence of an abusive exercise of this right.  

This decision highlights the extent to which “fundamental rights” have become increasingly present in the employment relationship and should be kept in mind when it comes to taking disciplinary action against an employee for his or her statements or opinions.

An employee can only transfer to his personal email account professional emails that are useful for his defense

The French Supreme Court has already recognized that an employee may use, in the context of judicial litigation, corporate documents photocopied without the employer's knowledge. However, it sets two conditions that must be met in order for the employee to escape a conviction for theft: 

- the employee must have obtained the documents during the performance of his or her duties, 

- these documents must be necessary for the exercise of the rights of defense.

In a recent case, an employee had transferred 256 work-related e-mails to his personal e-mail account immediately after having been summoned to a meeting in view of his dismissal. His employer dismissed him for gross misconduct because of this.

The Court of Appeal held that there was no gross misconduct for the 4 following reasons:

- these professional documents sent before the preliminary meeting could be necessary for his defense,

- the employee was subject to a confidentiality duty,

- he had signed the company’s I.T. policy which referred to the principle of confidentiality without expressly prohibiting the transfer of e-mails,

- the employer did not provide evidence that the documents were disclosed to third parties.

The French Supreme Court overturned this ruling on November 9th, 2022 deeming that the Court of Appeal should have investigated whether the employee could justify that the documents were strictly necessary for the exercise of his rights of defense in the framework of the dismissal process. It is only on this condition that an employee can appropriate documents belonging to his or her employer. 

Itinerant employees’ travel time can be effective working time

In a decision rendered on the 23rd of November 2022, the French Supreme Court departed from its previous position in relation to an itinerant employee’s travel time between his or her home and his or her first client, then between his or her last client and his or her home.

The Labor Code defines effective working time as “the time during which the employee is at the employer's disposal and complies with his instructions without being able to pursue personal interests. The time spent traveling to and from the place of work is not considered to be effective working time”. However, the Labor Code provides that if it exceeds the normal travel time between home and the usual place of work, it is subject to financial compensation or rest.

As a result, and up until now, the French Supreme Court held that an itinerant employee could not be paid overtime for travel time between home and a customer’s location. This position had been challenged by a March 9th, 2021, CJEU ruling. In this decision, the CJEU deemed that the concepts of "working time" and "rest period" are legal concepts that should be defined according to objective characteristics, with reference to the system and purpose of Directive 2003/88/EC. According to the CJEU, Member States cannot make the right to have working periods and corresponding rest periods duly considered subject to any condition or restriction whatsoever.

The French Supreme Court therefore changed its position. It noted that in the case at hand, the employee had to make appointments and respond to his contacts during his travel time, and that he had to be at the employer's disposal and comply with his instructions, without being able to go about his personal affairs. Therefore, travel time had to be construed as actual working time and taken into account for the purpose of calculating overtime. 


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