Le Droit et Vous

The offence of concealed work is not automatic in the presence of an illicit flat-rate pay agreement.

Labour Law

Source: Supreme Court – Social Chamber – June 16th 2015, n° 14-16953

First of all, the regulation regarding concealed work has to be reminded.

Indeed, the article L.8223-1 of the Labour Code provides that:

"In the event of termination of the employment contract, the employee, whom services were used by an employer, under the provisions of the article L.8221-3 or by committing the acts mentioned in the article L.8221-5, is entitled to a fixed indemnity equal to a six-month salary."

And the article L.8221-5 of the Labour Code adds that:

"Is considered concealed work by concealing a paid employment, the fact for any employer:

  1. 1.Either to intentionally avoid the fulfilment of the formality provided in the article L.1221-10, related to the declaration prior to the beginning of the employment;
  2. 2.Either to intentionally avoid the fulfilment of the formality provided in the article L3243-2, related to the delivery of a payslip, or to mention on it a number of working hours inferior to the one really accomplished, of this mention does not result from a convention or a collective agreement of the adaptation of the working hours concluded in application of the title II of the first book of the third part;
  3. 3.Either to intentionally avoid any declaration related to wages or social contributions to collection agencies of social contributions or to the tax authority under legal provisions."

In the present case, the Social Chamber of the Supreme Court specified in which conditions the employee was entitled to require the granting of this fixed indemnity.

In this case, an employee had been hired as an escort by a society, with a contract of work for an indefinite period, from December 22nd 2008, which fixed the annual number of working hours to 1645 hours. The employee had signed a flat-rate pay agreement in terms of hours with his company.

On August 31st 2010, he gave his resignation by a letter dated August 31st 2010.

He seized the Labour Court in order to obtain an adjustment of salaries, especially concerning the number of extra hours accomplished in and above the limit of the annual agreed number, as well as the fixed indemnity for concealed work.

The Court of Appeal had considered that the flat-rate pay agreement was illicit and had condemned the employer to pay the employee, on top of the extra hours, the fixed indemnity for concealed work.

The employer appealed to the Supreme Court. In its decision dated June 16th 2015, the Social Chamber of the Supreme Court, even if it admitted the illicit nature of the flat-rate pay agreement, concluded between the employee and his employer, however it added that the intentional nature of concealed work could not be deducted only from the application of this illicit flat-rate pay agreement.

Therefore, the employee who contests the validity of the flat-rate pay agreement and claims the payment of his extra hours, if he wishes to require the condemnation under the fixed indemnity for concealed work, will have to prove the intention of his employer to avoid the social regulation in terms of concealed work.

The victim's behaviour has no effect on the characterization of moral harassment

Labour Law / Criminal Law

Source: Supreme Court – Criminal Chamber – May 27th 2015, n° 14-81489

In a decision dated May 27th 2015, the criminal chamber of the Supreme Court was questioned on taking into consideration the victim's behaviour in the characterization of moral harassment.

In the present case, a secretary had been the object of public disparagement from her hierarchical superior, who had told her colleagues to keep their distance with her, had installed her on her own in a meeting room, had not given any task to her, had not invited her to any end-of-year event and at last, had refused to adapt her working hours.

However, in this case, the victim had not had a loyal behaviour with her employer, as she had been hired to be a general secretary although she did not have the required skills and had quickly been in a difficult situation. As she did not accept any criticism, she had had relational difficulties to the point that she had even become aggressive towards her colleagues, who had come into depression.

In the first place, the Court of Appeal had considered that the victim herself was the origin of her supervisor's behaviour, so the moral harassment could not be characterized in such situation.

It is not the position of the Criminal Chamber of the Supreme Court, who specified that the Court of Appeal should have tried to see whether the alleged acts, which she admitted were not a correct behaviour, exceeded, whatever way the civil party used, the limits of the power of the defendant and characterized a behaviour as per the article 222-33-2 of the Criminal Code.

Therefore, according to the Supreme Court, the victim's behaviour does not matter, and the moral harassment can indeed be characterized from the moment when it is part of the legal definition.

Defamation on a forum: tolerance of overstated comments from an individual

Civil Law

Source: order of the referee of the High Court of Paris dated June 24th 2015, available on the website « legalis.net »

An individual had acquired a second-hand vehicle from a mandatory society. After complete payment of the price, the vehicle was never delivered. Therefore the web user, who thought he had been swindled, published five aggressive comments on a discussion forum, which accused the seller to publish false positive comments towards her, to produce false documents and to be dishonest.

The Court considers for certain comments, that the defamatory nature is established, as it concerns a specific fact, which can be the subject to debate about the proof of its truth and which offends the honor and the consideration of the legal person.

The Court reminds that «The defamatory charges are, by law, made with the intention to harm, but they can be justified when the author establishes his good faith, by proving that he had a legitimate purpose, out of personal animosity, and that he complied with a certain number of requirements, in particular the seriousness of the investigation, as well as the cautiousness in the wording, providing that the good faith cannot be inferred from facts that happened after the diffusion of the comments».

The Court also adds that «These elements can be appreciated differently according to the type of writing concerned and the status of the person who expressed himself and, especially, with a lesser level of rigor when the author of the defamatory comments is not a journalist, whose profession is to inform, but a person actually involved in the facts on which she comments».

In this case, the denunciation of abusive commercial practices is a legitimate purpose and the personal animosity of the web user is not established, being reminded that a personal animosity has a motive hidden to the reader, meanwhile in the present case the respondent is interfering following a commercial dispute.

The Court states that, if the charge to have published a false positive comment as a client was not made with a real cautiousness in the wording, the web user is not a journalist but an individual involved, «which allows to tolerate a certain amount of overstatement in the wording».

The web user is therefore condemned to repair the moral prejudice of the society, by paying an amount of one euro, for public defamation towards an individual.

The decision reminds that the defamation is not judged with the same rigor, whether the person who expresses herself is an amateur or a journalist.