October – November 2020
We are very pleased to send you our newsletter this month, so that more than ever we can stay in touch with all of you who read us almost every month in these troubled times.
This month we focus on a very interesting decision obtained in a case handled by our firm, resulting from a ruling handed down by the Court of Cassation on 1 July 2020 regarding the reclassification obligation of the parent company, of an employee posted to a subsidiary abroad.
In the context of the firm’s news, it is worth mentioning our DIGILAW project, incubated by the Go Premières incubator in Paris, whose final pitch was a success!
Our office also actively participates to the next UIA digital congress, which will be held at the end of October, beginning of November.
Keep contact with our colleagues from all over the world is a real asset: in these times of restricted mobility, we need to be even more mobile, but in a different way.
As our newsletter shows, we are resolutely focused on mobility, internationality, and innovation.
We believe that one of the best answers to the crises we are all going through is innovation, creativity and also maintaining an excellent level of expertise for our clients
- ARTICLE: The parent company’s obligation to reclassify an employee
- IN BRIEF: DIGILAW, Publications and event of the firm
The obligation of reclassification of an employee by the parent company when the employee is posted to a subsidiary abroad.
Article L 1231-5, paragraph 1 of the French Labour Code provides certain guarantees in favour of employees who have been placed at the disposal of a subsidiary company located abroad by a parent company.
According to this text, “when an employee is posted by the company he works for, to a foreign subsidiary, and is dismissed by this subsidiary, the parent company must ensure his repatriation and provide him with a new job compatible with the importance of his previous functions within the parent company”.
Thus, it is the parent company, and not the entire group, which, in the event of dismissal abroad, will take responsibility and assume the consequences of the termination.
This text was reiterated by the French Court of Cassation (Supreme Court) in a decision of July 1, 2020, overturning a decision handed down by the Paris Court of Appeal, which had refused to apply this protection to an employee who had resigned from his job.
According to the Paris Court of Appeal, the employee’s resignation (the validity of which had also been challenged ), did not permit to use the arguments based on the parent company’s violation of an obligation to reclassify in the context of a posting.
In fact, a senior executive had been posted abroad for several years and had, at the encouragement of his original employer, resigned from his position to be hired by the local subsidiary belonging to the same group.
In fact, the employee continued to perform the same functions and to work for the group, as he had done before the resignation imposed on him by the group.
A few years after his resignation, the employee was dismissed by the local subsidiary, without any consideration. The employee finds himself deprived of all his rights in France, and virtually all protection in the host country, whose legislation was much less protective.
Challenging the validity of his resignation and arguing that the parent company had violated its obligation to reclassify him, the employee had sued the parent company, his original employer, in France, but his claim was rejected as , the judges considered that the employee’s resignation did not allow him to invoke against the parent company the violation of any reclassification obligation.
This is the particularly interesting contribution of the judgment handed down by the Court of Cassation – which confirms well-established case law – and which rightly points out that the provisions of the first paragraph of Article L 1231-5 are applicable, as soon as the employee is placed at the disposal of a foreign subsidiary by the original employer, regardless of whether the employee has subsequently resigned from his duties within the parent company.
It is easy to understand the logic of the text: The obligation to redeploy the parent company does not disappear with a resignation in the country of origin, especially when it takes place in the same group and the employee continues to be placed at the disposal of a subsidiary by the parent company, even if a “artificial” resignation would have taken place.
For French companies who post employees abroad, it is important to remember to clearly define the terms and conditions and consequences of the termination of the employment contract abroad.
In practice, it is obvious that these local redundancies must be accompanied by effective redeployment offers, compatible with the employee’s previous functions within the parent company.
Digilaw, Publications event of the firm
Digilaw : very clear progress
After nearly a year of programming within the Go Premières Iles-de-France incubator, the firm presented its project for an international and multilingual digital platform in labour law, Digilaw, to the final jury.
The members of the jury, coming from various backgrounds in the world of entrepreneurship, welcomed the project with great enthusiasm.
On the strength of this success, Digilaw is continuing on its path and is seeking to strengthen its teams with the aim of commercialising it in April 2021.
A beta version of the platform should be online by January 2021 and Digilaw is starting to look for companies to test its solution.
You can already contact the firm if you are interested.
Publication in September 2020 of an article on pharmaceutical relocation by Nathalie Cazeau, in the magazine Pharma Network
Nathalie CAZEAU had the honour of publishing an article in the magazine Pharma Network on the legal challenges of pharmaceutical relocation in Europe.
Here is the link of the article to be read and shared without moderation (in French): article
Participation in the UIA congress, on the module on liability clauses in international contracts
This intervention, which will be held in line with the health context, will address the theme of liability clauses in international contracts.
Record the date of October 29th to follow this intervention closely!