Employment Law Newsletter – May 2019


Our Paris office is pleased to present its monthly newsletter on employment matters.

  1. Equal Treatment / Collective Bargaining Agreement:

    The French Supreme Court sets limits to the assumption of justification relating to differences in treatment between employees

    The French Supreme Court refused to admit a general assumption of justification for differences in treatment introduced by means of a collective bargaining agreement relating to matters where European Union law is enforced, on the ground that this presumption would place the burden of proof on the employee to prove that the principle of equal treatment has been infringed in violation of burden of proof regulations in European Union law.

    However, the French Supreme Court recalls in its explanatory note regarding its decision dated 3 April 2019 that the assumption of justification of the difference in treatment remains in force regarding differences in treatment made by means of collective bargaining agreements between professional categories, between employees performing within the same professional category distinct functions, between employees belonging to the same company but to distinct entities whether the difference results from an entity or company-wide collective bargaining agreement.

    (French Supreme Court. 3 April 2019; n°17-11.970)

  2. Professional Elections

    2.1 Determination of the number and scope of establishments by unilateral decision of the employer clarification of the conditions

    The French Supreme Court considers that although article L. 2313-4 of the French Labour Code allows the employer to unilaterally set the number and scope of distinct entity withing the company, this prerogative is only admissible after a fair attempt at negotiation and in the only hypothesis of absence of negotiations.

    In the present case, the employer had unilaterally fixed the number and scope of distinct entities without prior negotiations. The French Supreme Court considers that the employer unilateral decision should be null and void, without the Administration having to rule on the number and scope of the distinct entities until negotiations have been previously initiated. The employer is consequently summoned to open negotiations.

    (French Supreme Court; 17 April 2019; n°18-22.948)

    2.2 Parity in professional elections: precisions on incomplete and irregular lists

    The French Supreme Court confirms that, during professional elections, when more than two positions are to be filled, a...

To continue reading