Août - Septembre 2015/ August - September 2015

Adoption by the Senate of the Project of Law for the modernisation of the French Health System (consecration of the right to oblivion)

The Senate has adopted on October 6th 2015 a Project of Law establishing the right to oblivion for the persons who were previously affected by cancer, which had already been adopted by the National Assembly on April 14th 2015.

This law specifies the delays defined by the Convention "AREAS" (ensure and borrow with an aggravated risk of health). This law brings the two following significant changes:

  • The limitation to 10 years (from the end of the therapeutic protocol) of the delay beyond which no more medical information can be gathered by the insurance companies and to 5 years for all cancer pathologies which happened before the age of eighteen years old.
  • The interdiction for the insurance companies to jointly apply additional premiums and exclusion of guarantee at the time of the subscription of a loan.

Thus this law limits the possibility of access to personal information by insurance organisms, which had the consequence to limit the access to credits for the persons who had been victims of cancer.

The travelling times domicile-first client and last client-domicile of itinerant employees must be considered as an effective working time

Labour Law

Source: European Court of Justice, 10 Sept 2015, n° C-266/14

In an important decision, the European Court of Justice (ECJ) has considered that the travelling times domicile-first client and last client-domicile of itinerant employees will have to be considered as an effective working time. In the facts, the Spanish company Tyco, specialized in the installation of safety devices, closed its regional offices and only kept the main office in Madrid, depriving hence its employees of a fixed workplace.

Those employees were therefore forced to do long trips and spend an unusual long time on the road, which could exceed 100 kilometres between the first client or the last client, and their domicile. The company Tyco had considered that the travelling time first-last client-domicile was a rest time.

The Court considered that the travelling time domicile – first client and last client – domicile of itinerant employees had to be considered as an effective working time.

This position clearly contrasts with the provisions of the French Labour Code. Indeed, the article 3121-4 of the Labour Code considers that the travelling time between the domicile and the workplace was not an effective working time. The French Supreme Court had to specify, at a later time, that this travelling time could be considered as an effective working time if it was unusually long.

This decision of the ECJ settles, therefore, a principled position, at least in regards with the itinerant employees, and which will have important impacts on the labour law of the States members of the European Union and de facto on French Law.

The employer cannot lay off an employee who was protected, for a motive already rejected by the work inspection

Labour Law

Source: Supreme Court, Social Ch., 23 Sept 2015, n°14-10.648

According to a decision dated 23rd September 2015, an employee, who was previously union representative (hence protected employee) in a first company and was transferred to another company in which he was asked to do some handling tasks of aircraft type seat. The employee refused to do those tasks because he considered that they were not part of his duties.

Indeed, as an "aircraft type seat mechanic", his tasks consisted in ensure the removing and refitting, the inspection, the repairing and the modification of the aircraft type seat, and not the handling. He had then been the subject of two lay off proceedings on the grounds of fault, which ended in the refusal of authorization by the work inspection.

At the end of his period of protection, the employee has finally been laid off by his employer because he still refused to accomplish the litigious tasks. In its decision, the Supreme Court considered that the employer could not lay off an employee, formerly protected, for a motive that had already ended in a decision of refusal by the work inspection.

Thus the Court considers: "Whereas, however, the lay-off pronounced after the expiration of the legal period of protection, cannot be driven by the facts mentioned in front of the administrative authority and which ended in a decision of refusal of the authorization of the lay-off;

Then, considering as included in his employment contract, the tasks of handling aircraft type seats and, considering faulty the refusal of the employee to accomplish them though the administrative authority had previously refused to authorize the lay-off of the employee, for the motive that those tasks were not inherent to the contract and resulted from a modification that the employee had the right to refuse, the Court of Appeal has violated the aforementioned text."