Mai 2015

Mobility clause: the geographical region cannot be hypothetical

Labour Law
Source: Supreme Court, Social Chamber, May 13th 2015, n°14-12698

Law case decisions regularly consider that the mobility clause inserted in an employee's contract of employment is valid under the condition that it defines precisely the geographical zone of application (Supreme Court, Social Chamber, June 7th 2006, n°04-45846)
In this law case, an employee had signed a contract of employment, which stipulated that he was taking «the engagement to accept any change of posting in another agency, which would be necessary for the interest of the company's functioning and this, to all the regions where the society operates or will operate. »
The employee refused a new assignment, which caused his lay-off and he seized the labour court in order to ask for the nullity of this clause and his lay-off being renamed into unfair dismissal.
Even though the Court of Appeal had denied his request, the Supreme Court set aside the decision of the Court of Appeal for the motive that the mobility clause had to define precisely the geographical zone of application and cannot allow the employer to be able to unilaterally extend its reach.
The clause stipulated in the employee's contract of employment for the Supreme Court, allowed the employer to unilaterally amend its reach as it was envisaged that the employee could be assigned in a new sector where the company would be newly implanted.
The redaction of the mobility clause must therefore be as precise as possible, failing which, the judges will remove it.

Can a drop in turnover justify redundancy?

Labour Law
Source: Supreme Court, Social Chamber, April 16th 2015, n°14-10551

The article L.1233-3 of the labour code gives the definition of the economic reasons allowing an employee's redundancy.
Thus, it outlines: «Constitutes a lay-off for economic reasons the lay-off made by an employer for one or several reasons, other than individual motives, resulting from job-cut, change in the job, or modification, refused by the employee, of an essential part of the contract of employment, subsequent in particular to economic difficulties or technologic changes»
Therefore, the employer has to prove real economic difficulties.
In this law case, the Supreme Court had to discuss on the matter whether a drop in turnover of a company was enough to justify the financial difficulties of the company, and therefore justified the employee's redundancy.
It was about an employee who was hired as a salesperson by the owner of a tobacconist's shop, who was made redundant when the owner changed.
The employee had disputed the real and serious cause of her lay-off and the Court of Appeal of Colmar, on November 14th 2013, gave her reason.
The employer made an appeal to the Supreme Court, explaining that the continuous drop in turnover, over several years, proved the economic difficulties and beyond, the employee's redundancy.
The Supreme Court did not follow this argumentation as it confirmed the decision previously rendered, indicating that the Court of Appeal had indeed noticed that the turnover of the company was fluctuating from 2008 to 2010, but was still in profit, and had only taken into consideration that making a lower profit the year before the redundancy was not enough to prove financial difficulties pleaded, and therefore deducted that the redundancy had no real and serious cause.
The employer has therefore been sentenced to pay damages to the employee, her lay-off having been renamed into unfair dismissal.

Natural disaster and visiting and accommodation right

Family Law
Source: Court of Appeal of Toulouse, May 11th 2015, n° 14/03146, n° 15/458

It is an atypical decision rendered, following the nuclear disaster in Fukushima with regards to the accommodation right of a child.
In this law case, where the context is really peculiar, it was about a couple who had met in Japan and had got married in Toulouse in February 2007, shortly before their daughter's birth. In 2008, they had decided to go back to live in Japan, nevertheless following the nuclear accident in Fukushima in 2011, they decided to leave Japan.
In 2012, the husband filed a divorce petition, pronounced by a judgement dated May 7th 2014. The ex-wife went back to leave in Japan, but the parental authority of the daughter was still exercised jointly.
The habitual residence was set with her father, but the mother benefited from a visiting right to be determined amicably or, if not, to be planned in the region Midi-Pyrénées, the first half of school holidays on even-numbered years, and the second half, on odd-numbered years, and the totality of the end-of-year holidays. The mother also had to pay an allowance for the maintenance and education of the child.
The mother partially appealed of this decision, especially in order to receive her daughter in Japan, at her own place, during school holidays.
The father refused such idea because of the major nuclear accident which happened in Fukushima.
The question was therefore to know if a nuclear disaster could have an incidence on the visiting and accommodation right of a mother living in a place close to the place of the sinister.
The Court of Appeal of Toulouse placed the child's interest and the family bonding with the mother's parents, beyond the disaster in order to allow her to receive her daughter at her Japanese place, providing that she was not at risk.
Indeed, the judges based their decision on elements obtained on the French Minister of Foreign Affairs' website, which showed that the place where the child was to be received was not subject to specific restrictions, as only the zone close to the reactors was potentially dangerous.