How companies and employees can respond to the Coronavirus

Our Firm has summarised below your scope of action, in the context of the sanitary crisis we are currently experiencing, in the following FAQ, on the basis of the measures implemented to date.

Are employers under the obligation to implement teleworking within their companies?

Employers have a strict obligation to ensure safety results, and must therefore provide for the physical and mental safety of their employees. Thus, they must take all steps to protect the health and safety of their employees.

In this respect, the Government says that taking into account the sanitary crisis and containment situation, teleworking is to be preferred.

Is it still possible to apply for partial activity?

Companies may still apply for partial activity on the dedicated portal of the administration https://activitepartielle.emploi.gouv.fr/aparts/.

To date, according to the Ministry of Employment, over 5 million employees are now subject to short time working in 470 000 companies.

Is it possible to be both subject to (i) teleworking and (ii) partial activity mechanism (named chômage partiel) “in full”?

From the moment an employer applies for authorization to cease its activity in the context of the “partial activity mechanism”, its employees can no longer work. If the employees continue to work, the employer commits a fraud and is exposed to penalties in this respect.

According to the statements of Muriel Pénicaud and her Labour Ministry “Subjecting employees to short time working (partial activity) is not compatible with teleworking. Where an employer asks an employee to telework whereas the latter is subject to partial activity, this amounts to a fraud and is considered as illegal work”.

If the State notes that an employer has committed a fraud, the State may ask the employer to reimburse all of the sums it has received under the partial activity mechanism.

Various other penalties apply, which may be cumulated:

  • impossibility to receive public aids in terms of employment and vocational training, for a maximum period of 5 years.
  • 2 years’ imprisonment and a financial penalty of €30 000, pursuant to Article 441-6 of the French Criminal Code.
  • However, it is possible to reduce the activity of employees who are teleworking and to apply for “partial activity mechanism” for the time remaining and not worked.

Can an employee on sick leave benefit from the partial activity mechanism?

In the event the employee is on sick leave at the time the company implements partial activity within the company, the prevailing criterion is the classical criterion, i.e. the first cause of suspension of the contract of employment.

Thus, if an employee is on sick leave, he/she cannot be entitled to receive both the sick pay and the allowance which may be paid to him/her under the partial activity mechanism.

The employee only receives sick pay.

Can an employee carry out another activity during the non work-hours under the partial activity mechanism?

An employee may carry out another activity during the non-work hours without authorization from his/her employer, from the moment the contract of employment does not include an exclusivity clause.

If the contract of employment includes an exclusivity clause, the employee must obtain his/her employer’s express approval.

Employees remain subject to a duty of loyalty. Under those circumstances, an employee cannot work for a competitor or as a freelance in the event the activity competes with that of his/her employer.

How can social dialogue be maintained in times of containment (with staff representatives)?

Ordinary rules of law authorise the holding of meetings via videoconference from the moment the technical device ensures that the members of the committee are identified and actually attend the meetings.

As a matter of principle, the number of meetings held via videoconference is limited to three per calendar year, unless otherwise agreed by the employers and the elected members of the Social and Economic Committee (Comité social et économique – CSE)

As for the required exchanges between the Secretary and the Chairman of the CSE regarding the agenda of the meetings, they may be made by email.

Where a CSE has to issue an opinion via video conference, ballot secrecy must be ensured where the members of the CSE request a vote by secret ballot.

Is it possible to initiate or continue an information-consultation process related to a proposed restructuring involving the setting up of a PSE (Employment safeguard plan– redundancy plan)?

Various situations may arise:

  • Regarding the files for which the process is achieved and the request for approval has already been sent (before 12 March): the DIRECCTE (French labour administration) should make a decision explicitly
  • Regarding the Employment Safeguard Plans for which an information-consultation process is ongoing:
  • The process is maintained via the technological resources, from the moment the employee representative institutions and the representative trade unions have the possibility to play their role
  • If the process is maintained despite the unfavourable opinion of the employee representative institutions and of the representative trade unions: there is a risk as to the regularity of the process, where the Social and Economic Committee did not have the possibility to play its role.
  • Regarding companies on the verge of initiating an employment safeguard plan: the Ministry recommends that companies postpone the announcement, taking into account the risks as to the regularity of the information/consultation and the difficulties to have a social dialogue that complies with the roles of the bodies.
  • Regarding the files approved by the bodies: It is recommended that the Employment Safeguard Plan be implemented by adapting the corresponding timetable, and in particular the notices of dismissals, in light of the sanitary crisis.

Is it possible to finalise the ongoing dismissal procedures?

From a legal perspective, nothing prevents employers from dismissing employees, and the Government seems to focus on dismissals for economic reasons.

However, the procedure should be adapted in light of the containment situation.

Is it possible to conclude mutually agreed termination agreements?

Nothing prevents employers and employees from concluding a mutually agreed termination agreement. Yet, some practical difficulties may arise during the containment regarding the holding of the meetings and the time periods for obtaining the administration’s approval. The ordinance n°2020-306 dated 25 March 2020 seems to suspend the time periods up to 24 June 2020. Yet, some precisions are expected to be made in this respect in the next few days.

Our Firm remains at your disposal for any further information and for any assistance you may need.

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BREXIT: FRENCH OR BRITISH CITIZENS, HOW TO GET READY ?

The Brexit officially entered into force on 31 January at midnight French time.  There is now a transition period until 31 December 2020, which may be extended by one to two years. During the transition period, the European Union rules remain applicable to Franco-British relationships. European Union law will continue to apply to companies and individuals in France and in the United Kingdom.

After expiry of the transition period, the provisions of the withdrawal agreement will apply.

The Asser law firm offers you a picture of the main features of the agreement from the perspective of European and British workers.

 

Who is concerned by the provisions of the agreement?

Three main categories of persons are concerned by the provisions of the agreement:

1) European Union citizens who:

  • Have exercised their right to reside in the United Kingdom in accordance with European Union law before expiry of the transition period and who continue to reside in the United Kingdom after expiry of the transition period;
  • Have exercised their right as cross-border workers in the United Kingdom in accordance with European Union law before expiry of the transition period and continue to do so after expiry of the transition period.

2) British citizens who have exercised the same rights of residence and under the same conditions

3) Family members of European and British citizens

 

What are the rights in terms of right of free movement?

In this respect, the text of the agreement does not provide for any major change: European Union citizens and United Kingdom nationals have the right to enter and leave the territory under the current conditions of European Union law, i.e. with a valid passport or national identity card.

The holders of a valid residence permit are not required to hold an exit visa, an entry visa or equivalent formalities.

 

What kind of  rights in terms of “right of residence” and “right to work”?

You are French 

  • You reside in the United Kingdom

–          Right of residence of French citizens and their family ?

–          Right to the « settled status » Eligibility to the « pre settled status » ?*

  • You work in the United Kingdom

–          The « pre settled status » is valid as a work permit ?*

 

You are British

  • You reside in France

–          Right to permanent resident status ?

–          Eligibility to obtain a residence permit ?*

  • You work in France

–          The permanent residence permit is valid as a work permit?

–          you must apply for a residence permit that is specific to workers ?*

 

*The Asser law firm assists you in your dealings with the Brexits’ consequences in employment law (customized advice)

 

The Employment Law Team

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Modes amiables de règlement des conflits en droit du travail : Les écueils à éviter

La rupture conventionnelle, instaurée par la loi n° 2008-596 du 25 juin 2008, constitue le seul mode de rupture du contrat de travail à l’amiable.

Annoncé comme un outil de pacification des ruptures des contrats de travail, ce régime juridique présente, en dépit de sa « simplicité » affichée et revendiquée, de nombreux écueils, aussi bien pour les salariés que pour les employeurs,  …  

Explications de Murielle Asser, Avocat au Barreau de Paris.

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De l’incontournable rupture conventionnelle…

Depuis la loi n° 2008-596 de 2008, instaurant la rupture conventionnelle du contrat de travail, l’employeur et le salarié peuvent convenir des conditions de la rupture du contrat de travail qui les lie, sous le contrôle de l’administration qui veille au respect de la liberté de consentement des parties. Mais, cette loi est à manier avec précaution. Explications de Murielle Asser, Avocat au Barreau de Paris.

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Rupture d’une période d’essai : respecter le délai de prévenance

Votre nouvelle recrue ne fait pas l’affaire ? La période d’essai vous permet de mettre fin à votre collaboration et d’envisager un nouveau recrutement…lire la suite

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