• The list of redeployment offers must indicate the tie-breaking criteria (Cass. soc., 8 Jan. 2025, no. 22-24.724)
Since the Macron ordinances of 2017, the employer has had a choice: either to make personalised offers of internal redeployment to each employee, or (since 2017) to circulate by any means a list of available positions to all employees (C. trav., art. L.1233-4 al 4). In the latter case, the list specifies the criteria for deciding between employees in the event of multiple applications for the same position, as well as the deadline for the employee to submit a written application, which may not be less than fifteen days (C. trav., art. D.1233-2-1 III).
If the list does not include the tie-breaking criteria, the offer is imprecise “in that it does not provide the information needed to give employees the tools they need to make their decision”.
employer failed to fulfil its obligation to reclassify the employee. The dismissal is without real or serious cause.
It does not matter whether the tie-breaking criteria are set out in the PSE
It does not matter that the employees did not apply for any offers.
For the record
The offer of redeployment must not omit any of the legal information: the job title and description; the name of the employer; the nature of the employment contract; the location of the job; the level of remuneration; the job classification. If any of these details are missing, the offer is deemed to be imprecise, which means that the employer has failed in its obligation to redeploy the employee. The dismissal is without real and serious cause (Cass. soc., 23 Oct. 2024, no. 23-19.629).
• A collective agreement may reduce redundancy pay on the basis of age (Cass. soc., 8 Jan. 2025, no. 23-15.410)
In this case, the collective agreement for engineers and managers in the metallurgy industry provides for a reduction in the amount of redundancy pay from the age of 61:
At a time when the full retirement age was set at 60
The reduction may not result in the contractual redundancy payment being lower than the statutory redundancy payment.
There is no discrimination on the grounds of age because :
This reduction in the contractual redundancy payment pursues a legitimate objective in that it is intended to encourage employees who have reached retirement age to leave in order to promote the sharing of work between generations and the integration of young workers.
The reduction is not disproportionate, as the workers, despite their age, benefit from economic cover which is not unreasonable in view of the objective of employment policy. Moreover, the method of calculation is not manifestly inappropriate for achieving this objective.
The Court of Cassation’s reasoning, based on Article L. 1133-2 of the Labour Code, is derived directly from European Union law (first subparagraph of Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; see also (CJEU, 6 December 2012, Baxter, Case C-152/11)
• The scope of the mission of the chartered accountant appointed by the CSE as part of the consultation on the economic and financial situation (Cass. soc., 8 Jan. 2025, no. 23-19.403)
The EWC’s expert appraisal for the annual consultation on the company’s economic and financial situation can only cover the year in question and the two preceding years, as well as the information relating to those years.
This ruling is based on the periods provided for in the Labour Code in the absence of an agreement (C. trav., art. R. 2312-10).
• Recognition of institutional moral harassment in criminal law (Cass. crim., 21 Jan. 2025, no. 22-87.145; C. pén. art. 222-33-2)
In the France Télécom suicides case, the Criminal Division of the Court of Cassation penalised the company’s directors for having implemented a company policy which, with full knowledge of the facts, led to a deterioration in the working conditions of all or some of their employees
To remember
It is not necessary for the acts complained of to concern one or more employees in a direct relationship with the perpetrator, nor is it necessary for the victimised employees to be individually named. The manager may not personally know the employees targeted by this policy
Judges do not review the appropriateness of a company policy, which is a matter for management. They do, however, examine the method used to implement it in order to determine whether it exceeds the normal powers of management and control of the company director.
For the record
The Social Division of the French Supreme Court established the concept of managerial moral harassment in 2009 (Cass. soc., 10 Nov. 2009, no. 07-45.321)
• More flexibility on notice of unfitness for any job (Cass. soc., 12 Feb. 2025, no. 23-22.612)
Issued by the occupational physician, the notice of unfitness for any job exempts the employer from the obligation to seek alternative employment, whether the employee’s unfitness is occupational (C. trav., art. L. 1226-12) or non-occupational (C. trav., art. L. 1226-2-1). In this case, the occupational physician must tick one of the following two boxes:
- or “maintaining the employee in a job would be seriously prejudicial to his health”;
- or “the employee’s state of health makes it impossible to find another job”.
Following the 12 February ruling, he may now use a wording equivalent to the legal wording, but is no longer obliged to reproduce it identically. In this case, the occupational physician had indicated that the employee was “unfit to return to the position held. The employee’s state of health makes it impossible to offer him an alternative position within the subsidiary or holding company, and renders him unfit for any position”. The Court of Cassation upheld this decision.