A prejudice “is not systematic”!

October 13th 2016

Since 2003, the Employment Section of the Cour de cassation (the French Supreme Court) has created the notion of “systematic prejudice” suffered by the employee when the employer fails to comply with some of its legal obligations.

This is an original concept, as unlike the ordinary rules of evidence of civil liability, it does not require from the employee to prove the existence of his prejudice to be eligible for compensation.

At most the employee needs to prove the extent of his prejudice.

For example, he may obtain damages if the employer has not organized any pre-hiring medical examination(1) or the setup of personnel representative bodies(2).

As the simple acknowledgment of default on the employer’s part is sufficient to establish the employee’s alleged prejudice, the lower court judges’ judicial discretion has progressively abated over time.

In order to rectify this situation, the Employment Section of the Cour de cassation overturned its case law, in a judgment dated April 13, 2016.

In this matter, an employee had requested damages due to the delayed issuance of his employment certificate and payslips, on the basis of case law, according to which the delayed issuance of the employment certificate necessarily results in a prejudice(3). The Lisieux Employment Tribunal had dismissed his claim due to the lack of proof of the employee’s alleged prejudice.

The Cour de cassation approved the decision of the lower court judges, considering “that the existence of a prejudice and the evaluation of the latter is part of the lower court judges’ judicial discretion; that the Employment Tribunal, which acknowledged that the employee did not provide any element to justify the alleged harm, had legally justified its decision, solely based on these grounds(4).

The departure from the notion of essential or systematic prejudice was confirmed by subsequent cases, and the Employment Section of the Cour de cassation is progressively deconstructing its precedent.

Accordingly, it has put an end to this systematic compensation in the event whereby, on the one hand, the applicable collective bargaining agreement is not mentioned on the pay slips(5) and, on the other hand, in the presence of an unlawful non-compete clause(6).

Contrary to all expectations, in a judgment dated June 30, 2016, it went even further, adopting a position that was non-compliant to the law.

Article L.1235-2 of the French Labor Code provides that the non-compliance with the dismissal procedure results in the judge having to grant an indemnity to the employee.

Yet, the Employment Section approved the Court of Appeal’s decision in dismissing the employee’s compensatory claim, on the grounds that the latter had not proven the prejudice caused by an inconsistency in the convocation to a preliminary meeting(7).

Therefore, the employer’s non-compliance with one of its obligations is no longer per se a ground for the employee to automatically be granted compensation. The employee must now provide the proof before the judge of the existence and severity of his prejudice. This return to the ordinary law of evidence was necessary in order to prevent indemnities from being granted unduly.

(1) Employment Section, Cour de cassation, October 17, 2012, no.10-14.248.
(2) Employment Section, Cour de cassation, May 17, 2011, no. 10-12.852.
(3) Employment Section, Cour de cassation, June 13, 2007, no. 06-41.189.
(4) Employment Section, Cour de cassation, April 13, 2016, no. 14-28.293.
(5) Employment Section, Cour de cassation, May 17, 2016, no.14-21.872.
(6) Employment Section, Cour de cassation, May 25, 2016, no.14-20.578.
(7) Employment Section, Cour de cassation, June 30, 2016, no.15-16.066.

Pierre Marette