These decisions are part of a renewed application of the theory of necessary prejudice, which recognizes an automatic right to compensation for certain prejudices (in this case, compensation is more a question of sanction than reparation).
In the first case, an employee who had been on maternity leave from July 2014, then on parental leave until August 2015, brought various claims before the industrial tribunal, including damages for the absence of medical follow-up and a return visit following her maternity leave, and for the work she had to perform during her maternity leave at the employer’s request.
As regards the claims relating to the lack of medical follow-up and the absence of a return visit, the appeal judges dismissed the employee’s claims for damages on the grounds that she had not demonstrated any prejudice.
The French Labour Court confirms the absence of necessary prejudice: “The Court of Appeal, which found that the employer had failed in its obligation to provide the employee with medical follow-up and a return visit following her maternity leave, noted that the employee could not justify any prejudice” (point 8).
On the other hand, with regard to work during maternity leave, the Chambre sociale (Social Division) recognizes a necessary prejudice and censures the Court of Appeal, which had made compensation conditional on proof of prejudice.
The French Supreme Court ruled in favor of articles L. 1225-17, paragraph 1 on the right to maternity leave and its duration, and L. 1225-29 of the French Labor Code, which stipulates that “It is forbidden to employ an employee for a period of eight weeks in total before and after childbirth, and that it is forbidden to employ an employee in the six weeks following childbirth”, interpreted in the light of Article 8 of Directive 92/85/EEC of October 19, 1992 on maternity leave, which must be at least fourteen continuous weeks:
“In so ruling, the Court of Appeal violated the aforementioned texts, even though the mere finding of this breach gave rise to a right to compensation” (point 22).
In this second ruling, an employee brought an action before the labour court seeking judicial termination of her employment contract and damages for breach of the obligation to grant a daily break and for work performed during sick leave at the employer’s request .
With regard to break times, the appeal judges had rejected the claim for damages, in the absence of proof of the prejudice suffered by the employee, while noting that the employer had indeed failed in its obligation to provide the employee with a break time in excess of a daily working time of six hours.
The Social Chamber censured this point in the appeal judgment, on the basis of Article L.3121-33, paragraph 1, of the Labor Code in its wording prior to Law no. 2016-1088 of August 8, 2016, interpreted in the light of Article 4 of Directive no. 2003/88/EC of the European Parliament and of the Council of November 4, 2003:
“In so ruling, the Court of Appeal violated the aforementioned text, whereas the mere fact of failure to observe the daily break entitles the employee to compensation” (point 8).
The Chambre sociale also recognizes a necessary prejudice when the employer asks the employee to work while she is off sick.
On appeal, the judges had rejected the claim for damages for breach of employment regulations, in the absence of proof of the harm suffered by the employee, even though they had found that the employer had indeed breached its duty of care by bringing the employee in three times during her sick leave to carry out a one-off work assignment for a limited period (point 11).
On this point, the Chambre sociale censured the appeal ruling, citing Articles L. 4121-1, L. 4121-2 and L. 4121-4 of the French Labor Code, which deal with preventive measures to be taken by employers as part of their health and safety obligations towards employees, interpreted in the light of Articles 5 and 6 of Council Directive 89/391/EEC of June 12, 1989:
“In so ruling, the Court of Appeal violated the aforementioned texts, whereas the mere fact that the employer was found to have breached its obligations by making an employee work during his sick leave entitles him to compensation” (point 12).
These two rulings further clarify the rules governing necessary prejudice.
In the past, in a context where the safety obligation was an “obligation of result”, the theory of necessary prejudice was applied to various hypotheses, such as the absence of a medical check-up as provided for in the Labor Code (Soc., December 13, 2006, pourvoi n° 05-44.580, Bull. 2006, V, n° 373).
In 2016, in a landmark ruling, the Social Chamber returned “to a more orthodox application of the rules of civil liability” (Cour de cassation Annual Report 2017, page 204), recalling that “the existence of a loss and its assessment fall within the sovereign discretion of the trial judges” (Soc., Apr. 13, 2016, no. 14-28.293).
Today, necessary damage is mainly recognized in cases of violation of a provision of a European directive or an international convention with direct effect, in the absence of specific provisions in domestic law requiring compensation.
Other recent decisions have recognized this loss:
- If maximum working hours are exceeded (Soc., January 26, 2022, no. 20-21.636, Soc., May 11, 2023, no. 21-22.281 & 21-22.912, Soc., September 27, 2023, no. 21-24.782 FS-B)
- In the event of failure to comply with the agreed daily rest period (Soc. February 7, 2024, no. 21-22.809).
Other examples can be anticipated, such as asking an employee to work during their paid vacations 😊
In the second ruling, but on a completely different subject, for the first time the Chambre sociale rules on the conditions for restitution of the compensatory non-competition indemnity, in the event that the judgment pronouncing judicial termination has been overturned on appeal.
The employer had begun paying the employee the financial compensation for the non-competition clause after the industrial tribunal had ruled that judicial termination was justified. On appeal, he requested that the judicial termination be rejected and that the financial compensation already paid be returned.
On appeal, after overturning the decision to terminate the contract, the judges ordered the employee to pay the employer the financial consideration for the non-competition clause, on the grounds that the financial consideration for the non-competition clause cannot be paid before the employment contract is terminated (point 15).
The Social Division censured the appeal decision, notably on the grounds of the fundamental principle of freedom to pursue a professional activity and article L. 1221-1 of the French Labor Code (relating to employment contracts):
“It follows from this principle and these texts that when a court of appeal overturns the judgment pronouncing the judicial termination of the employment contract and dismisses the employee’s claim, the employee’s compliance with the non-competition clause from the date of the judgment is an obstacle to the restitution by the interested party of the financial consideration, so that the employer must, in order to obtain restitution, demonstrate that the employee did not comply with the clause during the period during which it was effectively applied” (point 14).
The Chambre sociale had already refused to refund the compensatory non-competition indemnity in the event of cancellation of the clause by the judge, provided the employee had complied with it (Soc., October 28, 1997, pourvoi n° 94-43.792).
Yesterday’s decision is consistent with this.
This position was supported by the Advocate General, who recommended that the case be overturned, considering that the trial judges had rightly held that the financial consideration for the clause could not be paid before the contract was terminated, but that they had not drawn the legal conclusions from their findings without first investigating whether the employee had complied with the clause.