April – May 2022
- Publications on LinkedIn, duty of confidentiality and dismissal
- Variable pay and unilateral objectives setting
- Towards a new normative framework for duty of care
1- Publications on LinkedIn, duty of confidentiality and dismissal
In a decision dated 23 February 2022, the Paris Court of Appeal validated the dismissal of an employee justified by the latter’s publication on LinkedIn of images from internal company documents, as this behaviour constituted a breach of confidentiality under the employment contract.
In more detail, an employee project manager at SAFRAN Aircraft Engines published on LinkedIn two images of sections and geometries of an engine which, according to the employer, could be used by competitors.
The employer argued that this behaviour was a breach of the confidentiality obligation contained in the employee’s employment contract and inherent to his position as Research and Development Manager. The obligation of confidentiality was also included in the internal regulations applicable to the establishment, which provided, in particular, that in order to comply with the requirements of national defence, the protection of industrial privacy and the vital interests of the company, the staff is required to maintain absolute discretion on all information, manufacturing processes, techniques, commercial or financial operations of which they may be aware by virtue of their membership of the company’s staff.
The Court noted that the images published were from internal documents that were not intended for publication on a social network, which alone was sufficient to characterise the breach of confidentiality.
The Court rejected the employee’s arguments that the information in question was open access and could not be exploited. The employee argued that the information was succinct, that there were no parameters or scale, and that the images came from a poster displayed on the business premises.
This decision is not isolated. For example, in a decision of 30 September 2020, the Court of Cassation validated the dismissal of an employee justified by the fact that he had published the photograph of the fashion show of the new collection on his private Facebook account with more than 200 professional friends, even though he was contractually subject to a confidentiality clause (Cass. soc, 30 September 2020, n. 19-12.058).
2- Variable pay and unilateral objectives setting
It is not unusual for the employment contract to provide for the payment of variable pay subject to certain targets.
Where these have not been contractually agreed, the employer may unilaterally change the targets as part of annual variable pay plans, provided that the targets are reasonable and that the employee has been informed of them at the beginning of the year.
In other words, the employer can set them alone, he is not obliged to negotiate them with the employee (Cass. soc., 17 December 2003, n. 01-44.851).
The setting of new targets may well result in a reduction of the variable part of the salary and this does not constitute a change of contract which the employee is entitled to refuse (Cass. soc., 2 March 2011, n. 08-44.977).
The employer is free to set the objectives provided that they are realistic and achievable and that they have been brought to the employee’s attention at the beginning of the exercise.
It is essential that the setting of objectives is done in writing, so that it can be proven later. The objectives must be written in French even if the company has an international activity (Cass. soc., 3 May 2018, no. 16-13.736); however, the objectives may be written in English if a translation is circulated quickly (Cass. soc., 21 Sept. 2017, no. 16-20.426).
When the employer has not specified the objectives to be achieved, nor set the conditions for calculating the objective bonus, nor indicated a reference period, the judge cannot set the amount of the bonus himself. As soon as the employment contract provides for a maximum amount, the judge is obliged to retain this amount (Cass. soc., 10 July 2013, no. 12-17.921).
3- Towards a new normative framework for duty of care
On 1 April 2022, French and Brazilian trade unions issued a formal notice to McDonald’s for failing to comply with social and environmental standards. More specifically, the three unions accuse the fast food company of not having identified the risks and prevented serious violations of human rights and fundamental freedoms, health and safety of people and the environment resulting from its activities, both in France and at its Brazilian coffee and orange juice suppliers. They give the group three months to draw up a vigilance plan that complies with legal requirements.
Indeed, McDonald’s France has not published any vigilance plan since the 2017 law n° 2017-399 on the subject. This text nevertheless requires any company that employs at least 5,000 employees within their company and in their French subsidiaries or at least 10,000 employees within their company and in their French and foreign subsidiaries at the end of two consecutive financial years.
However, McDonald’s explains that because of its franchise-based organisation, the company is not subject to the duty of care because the French subsidiary of the multinational does not have the 5,000 employees in France required by law.
This formal notice illustrates the need for reform of the duty of care put forward by the Commission, which has just presented the proposal for a directive to the Parliament and the Council on corporate sustainability due diligence and amending the directive on 23 February 2022.
The duty of care established by the proposed directive covers the operations of the company and its subsidiaries, as well as the value chains of entities with which an established business relationship is maintained. The concept of value chain adopted by the proposal is very broad, including all production and service provision activities, including sales and distribution activities.
The contribution of this text lies in particular in the extension of the scope of application to companies with more than 500 employees and an annual turnover (CA) of more than 150 million euros and to companies in the EU employing more than 250 people and achieving a net turnover of more than 40 million euros, provided that at least 50% of the latter was achieved in a sector identified as being at risk (such as the fashion sector, 40 million, provided that at least 50% of the net turnover was achieved in a sector identified as being at risk (such as fashion, agriculture or mining), and finally to certain companies operating in the EU but established in third countries, where they exceed the above-mentioned EU turnover.
In addition, the draft provides for the mandatory involvement of stakeholders, and the obligation to provide for the signing of contractual clauses with a business partner, to enforce the company’s code of conduct in the value chain.
To make the text binding, the draft directive includes the possibility of setting up a supervisory authority responsible for ensuring compliance with the duty of care and a European cooperation network on practices and sanctions (art. 17 of the draft directive) with investigative and sanctioning powers that the FFA does not have.
In addition to this work, the Commission has also presented a strategy to promote decent work worldwide and is preparing an instrument to ban products derived from forced labour. These advances represent a real opportunity for the control of supply chains mobilised by the markets, more transparent, more resilient and guaranteeing fair conditions of competition for companies.
The adoption of a harmonised and binding normative framework on due diligence will help to promote the implementation of strategies that respect fundamental and environmental rights within companies such as McDonald’s.
Alexia Duran Froix