Law firm specialising in employment law
and social security law.
Law firm specialising in employment law
and social security law.
It is well known to companies that the fixed number of days generates considerable litigation which can prove to be costly. On 6 January 2020, the Court of Cassation handed down a ruling that provides a new welcome solution for employers.
Column published in actuEL RH can be read by clicking on the link below: https://www.actuel-rh.fr/content/le-remboursement-des-jours-de-rtt-par-le-salarie-simpose-en-cas-de-remise-en-cause-de-la or can be read below.
The multitude of legal provisions governing implementation of the fixed number of days, combined with strict case law with regard to employers, have resulted in challenges to this arrangement becoming a leading claim in industrial disputes.
Every dispute involving an employee on a fixed number of days currently has as a consequence a claim for an overtime adjustment: the sums claimed reach high amounts in most cases and the chances of the employer succeeding are slim.
On 6 January 2021, the Court of Cassation gave a boost to employers by providing an unprecedented solution.
Explanations
The implementation of the annual fixed number of days assumes compliance with a certain number of conditions set out in Articles L.3121-53 et seq. of the French Labour Code (Articles L.3121-43 et seq. before 10 August 2016).
Initially, the employer must ensure that this mechanism is laid down:
The compulsory statements which are included in such agreements are intended in particular to ensure protection of employee health and safety.
Then, the employer must ensure the workload and protect the given employee’s health and safety by setting up a number of safeguards, in particular through:
A fixed number of days agreement entered into in breach of legal provisions risks being voided. If the collective agreement contains all the required guarantees but the employer does not comply with them, then the fixed number of days agreement is considered to be unenforceable.
In the event of litigation, whatever the case (void or unenforceable), the penalty will apply: the employee must be considered to have been subject to the legal rules on working time (35 hours per week), which enables him to claim, among other things, an overtime adjustment for all hours worked above this working time over the last three years.
In a dispute, providing supporting evidence does not specifically fall on one of the parties. Nevertheless, if the employee must be able to provide evidence to the court in advance in support of his claim, the employer must be able to provide evidence in support of the hours actually worked by the employee.
In practice, this is usually settled by the employee producing schedules, calendars, calculation tables of overtime, or even emails, which demonstrate his working hours.
On the other hand, the employer, if it has not implemented a system to precisely monitor working time, becomes dependent on the information disclosed by the employee in most cases. The employer then encounters real difficulties in contradicting the employee and reducing the amounts claimed.
As financial issues can quickly become significant and the analysis work astronomical, this type of litigation often makes employers shudder.
In the case covered by the ruling of 6 January 2021, a management employee was subject to an individual fixed number of days agreement in the scope of an employment relationship which ended in dismissal.
Having launched legal action against his former employer, he criticised in particular the lack of control of the working time and the meeting concerning the workload (requirements deriving from the applicable branch agreement), and claimed an overtime adjustment in this respect.
The employer filed a counter-claim requesting the reimbursement of the rest days (referred to as RTT or JRTT days in the ruling, which is the term we have used in this document for ease of understanding) that it had granted to the employee in the scope of application of the fixed number of days agreement.
Drawing on the consequences of non-compliance with the provisions of the agreement, Rennes Court of Appeal considered that the fixed number of days agreement should be rendered null, which justified the payment of an overtime adjustment (in addition to the related paid leave).
With regard to the employer's claim, Rennes Court of Appeal had held that as the fixed number of days agreement was not voided but only rendered unenforceable, it could not allow the employee to be deprived of entitlement to his RTT days.
The employer filed an appeal against this ruling.
On the point under appeal, the Court of Cassation did not accept Rennes Court of Appeal's analysis.
In its ruling of 6 January 2021, the Employment Division stated that, even though the agreement had been rendered unenforceable and not voided, the payment of RTT days granted in performance of the agreement was no longer owed during the period of suspension of the individual fixed number of days agreement.
In accordance with the provisions of Article 1376 of the Civil Code (as drafted prior to the order of 10 February 2016), whereby anyone who receives a sum not owed must return it, the Court of Cassation considered that RTT days, which are no longer owed, must consequently be "reimbursed" to the employer.
In doing so, it upheld the argument developed by the employer whereby RTT days simply constitute consideration for the calculation of working time in a fixed number of days, so they lose all purpose if the arrangement is withdrawn (as a result of the agreement being voided or simply rendered unenforceable).
To our knowledge, this is the first time that the Court of Cassation has ruled in this respect in a dispute relating to the fixed number of days.
Earlier decisions showed the beginnings of this trend.
In 2019, the Court of Cassation allowed the possibility for the employer to claim "reimbursement" of rest days granted to employees in return for a working time above the legal working time in accordance with the same Article 1376 of the Civil Code, However, these rulings were more discreet as they were handed down with regard to a method of organising working time specific to the “Syntec” collective agreement involving an arrangement for a fixed number of hours rather than days (Court of Cassation, Employment Division, 4 December 2019, no. 18-16942; Court of Cassation, Employment Division, 13 March 2019, no. 18-12.926 and others).
With regard to the fixed number of days, this solution is welcome and demonstrates an implacable logic.
In the disputes that we have come across up until now, when the employee succeeded in challenging a fixed number of days agreement, he benefited from an overtime adjustment without returning the rest days which he had taken. The employee was a winner on two fronts:
With a three-year limitation period, the number of days unduly granted by the employer was not insignificant, and there was no justification for such reasoning.
In this ruling, the Court of Cassation explained that the employee cannot make a claim challenging his fixed number of days agreement by making a considerable claim for an overtime adjustment, while having enjoyed the benefits of this agreement in the form of additional rest days.
Henceforth, if the employee wishes to have the legal working time applied retroactively, he will no longer be able to legitimately keep the additional rest days from which he has benefited. This is a perfectly logical solution: if the employee had worked "35 hours" during the period in question, he would not have benefited from the additional rest days under the fixed number of days agreement.
In the case of January 6, the employer's attempt (at least in the appeal) to obtain the same result concerning the salary increase relating to the application of the fixed number of days will be noted. It should be borne in mind that, in practice, the introduction of a fixed number of days usually results in an increase in the employee's salary. However, since the salary was provided for in an amendment and not strictly linked to the application of the fixed number of days, this argument was unlikely to succeed. Moreover, the employer did not lodge an appeal on this subject, which could have given rise to new case law.
It is therefore a perfectly coherent solution put forward by the Court of Cassation.
Undoubtedly, it will greatly reduce employees’ interest in filing this type of claim or, in any event, give some breathing space to employers who will consequently be able to try to significantly reduce the number of rulings against them.
Source: Court of Cassation, Employment Division,6 January 2021, no. 17-28.234)