Rulings of the French Supreme Court extending the principle of equality in unexpected directions are creating acute problems for employers. Jean-Benoît Cottin from Capstan discusses the implications of the recent employment case law developments in France, which seem to have highlighted the central importance of the constitutional principle of equality in the national motto “Liberté, égalité, fraternité”. 

Originally posted on the Ius Laboris Knowledge Base: www.globalhrlaw.com

1. Must all employees be equal in
France?
Publication Date: 11 February 2014 | Author(s): Jean-Benoît Cottin
Member Firm(s): Capstan Country: France
Rulings of the French Supreme Court extending the principle of
equality in unexpected directions are creating acute problems for
employers.
The French political thinker Alexis de Tocqueville wrote in 1840 of a
passion for equality in France that was “ardent, insatiable, incessant,
invincible”, suggesting people were “far more ardently and tenaciously
attached to equality than to freedom”.
Some things never change... Recent employment case law developments
in France seem to have highlighted the central importance of the
constitutional principle of equality in the national motto “Liberté, égalité,
fraternité”.
But first, let’s briefly consider anti-discrimination law in France. Clearly,
discrimination on prohibited grounds is unlawful and any measure that is
discriminatory is void (e.g. termination of an employee’s contract on
grounds of trade union activity). Moreover, alleged victims of discrimination
benefit from a lighter burden of proof: they have to establish before the
court facts from which it may be presumed that there has been direct or
indirect discrimination. It is then for the respondent to prove that there has
been no breach of the principle of equal treatment.
Whereas European Union law essentially prohibits discrimination based on
racial or ethnic origin, gender, religion or belief, a particular
disability, a particular age or a particular sexual orientation, French
law has developed significantly further. Discrimination is prohibited if
based on origin, sex, morals, sexual orientation or gender identity, age,
marital status, pregnancy, genetics, ethnicity, national origin or race,
political opinions, trade union activities, religious beliefs, physical
appearance, surname, health or disability. And the list continues to grow!
In addition, and without a precise textual basis, the French Supreme Court
established in 1996 that all employees should be treated
equally. According to the Court, all employees doing equal work should
be paid the same (“equal pay for equal work”). Equal work in this context

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must be assessed by taking into account the qualifications, functions,
levels of responsibility and workload of the employees in question.
However, a difference in functions only does not justify a difference in
treatment. For example, a human resources director must be paid as
much as another member of the board.
This assessment is not always easy in practice. Is a mason “equal” to a
roller driver? A difference in treatment can be justified, amongst other
things, by: diplomas (but not if the two employees have diplomas that are
equivalent); seniority (but not if it is already taken into account by a special
bonus); and work quality (but only if it is objectively measured).
Since 2008, the French Supreme Court has “discovered” another
dimension to the principle of equal treatment, establishing that all
employees must receive the same benefits if they are in the same situation
with regard to the advantage in question. Professional categories such as
white-collar and blue-collar do not in themselves justify a difference of
treatment. For example, it has been ruled that there is no reason why a
lawyer should not enjoy the same meal vouchers as his secretary, or why
a blue-collar worker should not have the same number of days off as a
white-collar worker in the same company.
Differences in terms of this type often derive from collective agreements,
but the Supreme Court refuses to consider that as a sufficient
justification. Following intense criticism of its approach, the Court has
accepted that a difference of treatment may be based on professional
categories if there is an objective and relevant reason that takes into
account the specific situation of employees within a category. For
example, executives may have more days off than other employees if their
workload is heavier than other categories of employees.
These developing principles can make day-to-day management difficult,
requiring employers in France to be in a position to justify all wage
measures they take even when this is implemented through collective
bargaining. More than ever, performance appraisals play a central role in
providing the necessary justification.
Returning to Alexis de Tocqueville, his words of nearly two centuries ago
seem to have an uncanny contemporary relevance: “When inequality of
conditions is the common law of society, the most marked inequalities do
not strike the eye: when everything is nearly on the same level, the
slightest are marked enough to hurt it. Hence the desire of equality always
becomes more insatiable in proportion as equality is more complete.”

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Originally posted on the Ius Laboris Knowledge Base:
www.globalhrlaw.com
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