Employment & Benefits Newsletter

• Evidence is considered "unfair" when it is obtained without a person's knowledge or through maneuvers or stratagems. 
• The Cour de cassation recently accepted the admissibility of evidence deemed "illicit," provided that it is necessary for the right to evidence and that the infringement of fundamental rights is proportionate to the aim pursued (Cass. Soc., September 30, 2020, n°19-12.058).
• The Cour de cassation completed this evolution by ruling that the production of unfair evidence is admissible, considering that the right to evidence can "justify the production of elements that may infringe other rights, provided that such production is indispensable to its exercise and that the infringement is strictly proportionate to the aim pursued." 

It remains to be seen how the Court will assess the indispensability of unfair evidence. It is highly likely that the cases in which such evidence will be admitted will be limited as far as an employer is concerned, which is supposed to have more means at its disposal than an employee. It is to be feared that this type of evidence (such as a clandestine recording of a conversation) will be used extensively by employees, who will be tempted to argue from their relatively weak position to justify a questionable type of evidence.

1.2. The requirement of good faith for whistleblowers is not satisfied if an employee does not substantiate his or her accusations 

CE, December 8, 2023, no. 435266: To benefit from the protection afforded to whistleblowers, an employee must do so in good faith. This is not the case for an employee who makes serious accusations in general terms against his or her former superior and who conducts a smear campaign against him or her without wishing or being able to substantiate his or her claims with factual information. 

2. LEGISLATIVE NEWS

2.1. Immigration Law

On December 19, 2023, Parliament passed a bill to control immigration and improve integration. This text was the subject of several referrals to the Constitutional Council, which handed down its decision on January 25, 2024. Many articles of the law were declared totally or partially unconstitutional, but the rest of the law was validated and published on January 26, 2024.

• Provisions declared contrary to the Constitution:
  • Migration quotas set by Parliament, and
  • Compulsory fingerprinting and photography in the event of refusal by a foreigner in an irregular situation.
• A number of provisions were censured as being adopted under a procedure contrary to the Constitution.
• The new law simplifies the procedures for processing visa applications and possible appeals, strengthens the possibilities for returning foreigners in irregular situations, and includes provisions for better integration of foreigners who have obtained visas.
  
  Replacement of three "talent passport" residence permits by a single residence permit called "qualified employee-talent" for a maximum period of four years. 
  
  Residence permits for people wishing to set up businesses or invest in France will be merged into a single multi-annual residence permit marked "talent-project holder" and valid for up to four years.

2.2. The formalities for employers offering open-ended contracts to employees at the end of fixed term contracts are specified 

Decree no. 2023-1307 of December 28, 2023 – Order January 3, 2024, NOR: MTRD2335570A JO January 10.

• Since January 1, 2024, employers that offer employees permanent contracts at the end of their fixed term or temporary contracts must comply with a specific procedure. The offer must be made in writing before the end of the contract, and an employee must be given a reasonable period in which to consider it. If the employee refuses this proposal, the employer must inform France Travail within one month. 
• The decree specifies that the employee's refusal must be notified by electronic means via a dedicated platform accessible from the France Travail operator's website.