Medical check-ups, paid leave, and fixed-number-of-workdays-per-year schemes: proof of harm is still required!
Under a principle laid down in a decision dated 13 April 2016 (no. 14-28293), the employee bears the burden of proving the harm that he or she alleges. However, the Court of Cassation (the French supreme court) has not hesitated to carve out multiple exceptions to this rule and, on numerous occasions, has allowed the application of the “necessary harm” theory (automatic finding of damages as soon as breach is established).
Nonetheless, in 4 decisions dated 11 March 2025, it refused to apply this theory and required the employee to prove the alleged harm.
The first decision (no. 21-23557) concerned an employer's failure to meet its obligation to provide medical check-ups for night workers.
The second (no. 23-19669) involved a case in which an employee was subject to a fixed-number-of-workdays-per-year scheme pursuant to a collective agreement whose provisions were not such as to guarantee that the workload and length of working time remained reasonable.
In the third case (no. 24-10452), the employer failed to comply with the statutory and collective bargaining provisions governing the monitoring of the workload of an employee who was subject to an individual fixed-number-of-workdays-per-year agreement.
The fourth case (no. 23-16415) concerned the employer's failure to take appropriate measures to ensure that the employee could effectively exercise his paid leave entitlement.
These decisions beg the question: what is the Court of Cassation's analytical framework for applying the “necessary harm” theory?
Summary
Can the employer rely on anonymized testimonies before the court to justify its exercise of disciplinary power?
It is established that courts cannot base their decisions solely or predominantly on anonymous testimony. On the other hand, it is accepted that they can take into consideration anonymized testimonies, i.e. testimonies subsequently rendered anonymous to protect their authors, whose identity is nevertheless known to the employer, when such testimonies are corroborated by other evidence enabling the court to assess their credibility and relevance (Cass. soc., 19 April 2023, no. 21- 20308).
This analysis was later confirmed with respect to a Social and Economic Committee seeking to justify its decision to call for an expert opinion on the grounds of serious risk (Cass. soc. 11 Dec. 2024, no. 23-15154).
In a decision dated 19 March 2025 (no. 23-19154), the Court of Cassation opens up the possibility for employers, under certain conditions related to the court’s assessment of proportionality, to rely on anonymized testimonies even when not corroborated by other evidence.
In companies or establishments (or groups of companies) with at least 1,000 employees, the employer must offer a redeployment leave to each employee whom it is planning to lay off for economic reasons (Lab. C. L. 1233-72).
The redeployment leave s taken during the notice period, which the employee is exempt from serving. If the duration of the redeployment leave exceeds the notice period, then the term of the latter is extended until the end of the redeployment leave. During this extension period, the employee receives a specific monthly allowance (Lab. C., Art. L. 5123-2, 3°; Lab. C., Art. R 1233-32).
But what about the company car?
In a decision handed down on 12 March 2025 (no. 23-22756), the Court of Cassation has ruled that when an employee is on redeployment leave, he is not entitled, during the period exceeding the notice period, to maintain the benefits in kind he enjoyed during the notice period.
As a result, the employer is entitled to demand the return of the company car.
In a decision dated 25 Feb. 2025 (no. 23-21.223), the labor chamber of the Court of Cassation has held that the value of a benefit provided by the Social and Economic Committee (“CSE” in the French acronym) cannot be adjusted based on employee seniority.
This decision supplements the labor chamber’s decision of 3 April 2024 (no. 22-16.812), in which it held that access to the CSE’s social and cultural activities could not be made subject to a seniority condition.
