Prohibiting alcohol | Post-termination non-competition clause

Published on : 01/04/2022 01 April Apr 04 2022

1) Prohibiting alcohol 

Internal regulations (so called “réglement intérieur”), which are compulsory in companies with at least 50 employees, must lay down health and safety rules. A number of restrictions may be set, subject to the labor administration’s control who shall check whether these are legitimate and proportionate to the sought aim.

Because the French Labor Code expressly allows certain “light” alcoholic beverages to be brought, case law has rejected general prohibition of all types of alcoholic beverage within the premises. 

In a decision dated 14th March 2022, the Supreme Administrative Court (Conseil d'Etat) admitted the validity of a generic alcohol prohibition within an industrial site, due to the nature of the business. It rejected the labor administration’s argumentation following which the employer had not characterized the existence of a particular situation of danger due to the lack of figures on the number of work accidents or prior disciplinary issues in relation to alcohol consumption on this site.

This is clearly an important nuance to current case law. However, such a ban may still not be based on general considerations but should be limited to activities: those for which it is obvious that alcohol consumption and employees eventually being drunk would not allow the employer to comply with its duty to protect the employee’s health, which may trigger its civil and criminal liability.

2) Deadline for lifting a post- termination non-competition clause

The terms and conditions for waiving a post termination non-competition clause are laid down in the employment contract or in the sectorial collective bargaining agreement, if any. These provisions usually provide for a period of time following notification of the termination, allowing the employer to unilaterally waive the clause. Not waiving on time means that the non- competition undertaking applies, and the employee shall then receive the associated monthly compensation for the whole duration of the clause.

The question is when to waive the clause when the termination of the contract occurs by mean of a mutually agreed termination (rupture conventionnelle).

In a decision dated 26th January 2022, the Supreme Judicial Court (Cour de cassation), now sets an absolute limit: if the employer intends to lift the non-competition clause, he must do so no later than the date of termination set by the termination agreement (which would generally be the day after the labor administration’s approval of such termination). This limit prevails on any longer timeframe stipulated in the employment contract or the sectorial collective bargaining agreement. This is an important rule to keep in mind, as labour contracts often included a two-weeks period after termination. 


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