LEGISLATIVE AND REGULATORY NEWS
- Adoption on 12 March 2025 on first reading in the Senate of the DDAUE bill (containing various provisions adapting to European Union law) Bill adopted by the Senate
The draft bill contains the following main measures:
• With regard to the publication of sustainability information by companies, the senators have relaxed the penalties applicable in the event of non-compliance with the “CSRD” directive. They removed the measure adopted by the deputies that made the granting of “France 2030” aid conditional on compliance with the directive. A measure was adopted to retain the possibility for the Autorité des marchés financiers to require companies listed on the Euronext Growth market to publish their corporate governance report.
• Large companies and the consolidating companies of large groups subject to article L. 229-25 of the Environment Code are exempt from obligation to produce a greenhouse gas emissions balance sheet (BEGES) if they are otherwise subject to the obligations to include sustainability information in a separate section of their management report.
• Following an amendment voted in Committee, the CSE will now be informed of the environmental consequences of the company’s activity during one of the three consultations provided for in article L. 2312-17 of the Labour Code: the company’s strategic orientations; the company’s economic and financial situation; the company’s social policy, working conditions and employment, at the employer’s discretion. At present, the CSE must be informed “during these three consultations”.
Next stage: Joint Committee of the 2 assemblies
2. Senior contracts
The ANI of 14 November 2024, which promotes the employment of older workers, is to be transposed in a draft law due to be adopted in the summer.
- Two BOSS updates Updates from 12 March 2025
• Taking into account the publication of the decree of 25 February 2025 relating to the valuation of benefits in kind for the calculation of social security contributions for employees affiliated to the general scheme and employees affiliated to the agricultural scheme.
• The following headings have been updated: Aide à domicile, Contributions à la formation professionnelle et à l’apprentissage, Effectif, Epargne salariale, Exonération jeunes entreprises innovantes et jeunes entreprises de croissance, Exonérations zonées, Frais professionnels, Indemnités de rupture, Montant net social et Protection sociale complémentaire.
- Sharp rise in absenteeism in the workplace
Results of the Datascope 2025 survey – observatory of corporate life (AXA)
Absenteeism in the workplace continues to grow at a worrying rate.
• An absenteeism rate of 4.5% in 2024
• 41% increase in absenteeism since 2019
• Managers, women and older people are particularly affected.
- Combating undeclared work
Urssaf will have recovered almost €1.6 billion in 2024 in the fight against undeclared work, compared with almost €1.2 billion in 2023 and €0.8 billion in 2022.
Urssaf target is to achieve €5.5 billion in adjustments for the period 2023-2027.
Source: Ministry of Labour
CASE LAW UPDATES
- The Social Chamber of the Court of Cassation has handed down a series of rulings on “necessary” damage
Contrary to the series of rulings handed down on 4 September last year, which enshrined the notion of necessary prejudice in a number of cases, the rulings handed down on 11 March rule it out in a number of situations.
As a reminder, in the case of a necessary injury, the victim does not have to prove the extent of the injury in order to obtain compensation. Compensation is automatic.
• Failure to comply with the contractual provisions relating to the fixed number of days does not constitute a necessary prejudice (Cass. soc., 11 March 2025, no. 23-19.669; Cass. soc. 11 March 2025, no. 24-10.452)
The necessary prejudice is not established following the cancellation of a fixed-term contract in days in application of a collective agreement “the provisions of which were not such as to guarantee that the amplitude and workload remained reasonable and ensured a proper distribution of the employee’s work over time”.
It will be up to the employee to demonstrate that he or she has suffered prejudice.
The Court of Cassation reiterated the sanctions provided for in the event of such a breach. In this case, the breach of the provisions relating to the fixed number of days is punished by the payment of overtime “the existence and number of which must be verified by the judge”.
It should be noted that the judgment was handed down despite the Advocate General’s conclusions to the contrary, according to which “the duty of consistency in case law nevertheless tends to justify the recognition of a new case of necessary prejudice”. If the employer exceeds the reasonable working time guaranteed by the lump-sum agreement, this may expose the employee to a significant risk to his or her health and safety. Its position was not followed.
• The employer’s failure to take appropriate measures to ensure that the employee can effectively exercise his right to leave does not constitute a necessary prejudice (Cass. soc., 11 March 2025, no. 23-16.415)
In this case, it was established that the employee had been prevented by her employer from taking her paid leave for 2016.
In the view of the Chambre sociale, this situation does not justify the recognition of a necessary prejudice.
It will be up to the employee to demonstrate that he or she has suffered prejudice.
The Cour de cassation recalls the penalty for such a breach: in this case, the employee’s paid leave entitlements are either carried forward if the employment relationship continues, or converted into paid leave compensation if the employment contract is terminated.
• The employer’s failure to fulfil its obligation to provide medical follow-up for night workers does not constitute a necessary loss (Cass. soc., 11 March 2025, no. 21-23.557)
The Cour de cassation points out that night workers benefit from regular individual monitoring of their state of health (C. trav., art. L.3122-11).
However, infringement of these provisions does not constitute a necessary prejudice to the Chambre sociale.
If necessary, it will be up to the employee to demonstrate that he or she has suffered prejudice.
The Court of Cassation reiterated the penalty for such a breach: failure to comply with the provisions on night work is punishable by a fifth-class fine, imposed as many times as there are employees affected by the offence. Repeated offences are punishable in accordance with articles 132-11 and 132-15 of the French Criminal Code.
What is the Court of Cassation’s analysis grid? At this stage, the necessary damage is recognised in the following cases:
- Non-compliance with an obligation laid down in the Labour Code giving rise to a right to compensation.
- Failure to comply with a European or international standard having direct effect.
For the record, the necessary loss is characterised in the following cases (non-exhaustive list): - Maximum working time exceeded (Cass. soc., 11 May 2023, no. 21-22.281),
- Failure to comply with the maximum weekly working time for night workers calculated over any period of twelve consecutive weeks ( Cass. soc., 27 Sept. 2023, no. 21-24.782 ),
- Breach of the obligation to suspend all work by the employee during her maternity leave (Cass. soc., 4 Sept. 2024, no. 22-16.129),
- Failure to take a break of at least twenty minutes once the daily working time reaches six hours (Cass. soc, 4 Sept. 2024, no. 23-15.944),
- Failure of an employer who made an employee work while he was off sick (Cass. soc., 4sept. 2024, no. 23-15.944).
- Trade union communications cannot be reserved exclusively for representative trade union organisations (Cass. soc., 12 March 2025, no. 23-12.997)
In this case, contractual provisions allow all trade union organisations to use electronic messaging to communicate with their members, with management or among themselves, and to have a trade union space accessible from the company’s intranet. On the other hand, they reserve for representative trade unions only :
• The possibility of sending an electronic message to all employees when the subject of the electronic messages relates to the topic under negotiation,
• Facilities to make union websites accessible on the company intranet in the form of “links”.
The Court of Cassation, citing the principle of equal treatment with regard to union communications, overturned the appeal decision, which had found that the stipulations of the agreement did not infringe the principle of equal treatment.
She linked the solution to the provisions on the posting and dissemination of trade union communications within the company, which are linked “to the constitution by trade union organisations of a trade union section, which is not subject to a condition of representativeness”.
This solution is consistent with case law since 2011.
As a reminder, since the Labour Law of 8 August 2016, a company agreement may define the terms and conditions for disseminating trade union information using the digital tools available in the company. In the absence of an agreement, trade union organisations present in the company which meet the criteria of respect for republican values and independence, and which have been legally constituted for at least two years, may make publications and leaflets available on a trade union website accessible from the company intranet, where one exists (C. trav., art. L.2142-6).
- What happens to benefits in kind during the period of redeployment leave which exceeds the notice period (Cass. soc., 12 March 2025, no. 23-22.756)
As a reminder, redeployment leave is a right for employees made redundant for economic reasons when they work for a company or group employing at least 1,000 people, provided that the company is not in receivership or compulsory liquidation.
In this case, the employees were seeking compensation for the loss resulting from the company’s withdrawal of their company car during their redeployment leave.
This is the Court of Cassation’s first decision on this subject, and the Court confirms that when an employee is on redeployment leave during the period exceeding the notice period, he cannot claim to maintain the benefits in kind from which he benefited during the notice period. Instead, he/she isonly entitled to claim the reclassification leave allowance.
The reasoning is as follows:
• During the period of leave that exceeds the notice period, the specific remuneration allocated to the employee constitutes a replacement income and not a salary. The amount is at least equal to 65% of the average gross monthly pay over the last twelve months and is not subject to social security contributions or payroll tax (Cass. soc., 1st June 2022, no. 20-16.404).
• As a result, during this period of leave, which exceeds the notice period, the employee can no longer claim payment of his usual salary and the benefits in kind that supplement it, the total of which constitutes his gross monthly pay. He may therefore no longer keep the company car and claim its use.
Please note that during the period of notice that the employee is exempt from serving, the company car, which constitutes a benefit in kind, cannot be withdrawn. This solution is expressly provided for by Article L.1234-5 of the Labour Code (see also Cass. soc., 8 March 2000, no. 99-43.091).