France

There is an employment contract when somebody is employed in order to carry out work, under the authority of the other party (employer) and in exchange for remuneration.

What does an employment contract need to contain?

An employment contract requires the employee to carry out work, provides for remuneration and makes clear that he/she is under the authority of the employer.

Is there a legal requirement to provide an employee with a written contract and if so, when does this have to be provided?

As a rule, a written contract is not obligatory. However it has to be provided in certain cases:

Contract with a limited duration (“Contrat à durée déterminée”),

Contract for a part-time work (“Contrat de travail à temps partiel”),

Contract for a temporary work (“Contrat de travail temporaire”),

Contract with apprenticeship (“Contrat d’apprentissage”),

Contract with a foreign employee, etc...

How would you define a redundancy/economic dismissal?

An economic dismissal is a dismissal due to the non requirement of or a reduced need for certain jobs resulting itself from an economic reason, such as economic difficulties, technological issues, the necessity of preserving competitiveness of the company or the stoppage of the activity/purpose of the company.

What is the procedure that an employer must follow when making an employee redundant/or dismissing on economic grounds?

The procedure varies considerably according to the size of the company and the number of dismissals planned. As regards the dismissal of one individual, the employer must convene a meeting to inform the employee of the position. At the end of this meeting one has to provide him with special information concerning different legal measures set up by the state in order to facilitate his regrading (“PRE-PARE”).

It is only after a certain period, as a rule seven days, that the person can be dismissed. One has then to inform the administration about the dismissal.

This area is quite complicated to summarise. However the basic rules are the following:

A) when the task force is under 50 employees and when the dismissal is a collective one:

a) In the absence of delegates of the personnel, the employer has to:

Set up the order of the dismissals (i.e. the criteria for the choice of who shall be dismissed),

Have a discussion with each of the employees concerned,

Notify the dismissals to the employees (7 days at least after the discussion with the employees),

Inform the administration of the dismissals (8 days at latest after the notification of the dismissals to the employees).

b) If there are delegates (employee rep-representatives) of the personnel and if the dismissal concerns less than 10 employees under a period of 30 days, the employer has to:

Consult the delegates of the personnel,

Have a discussion with each of the employees concerned,

Notify the dismissals to the employees,

Inform the administration of the dismissals (8 days at latest after the notification of the dismissals to the employees).

The employer has to communicate to the delegates of the personnel and to the administration information regarding the economical situation, the reason of the collective dismissal(s), number of dismissals planned, etc. Further information must be communicated to the employees themselves as regards the legal measures set up by the state in order to facilitate their regrading ("PRE-PARE"). The dismissals are notified at least 7 days after the discussion with the employees.

If the dismissal concerns 10 or more employees in a period of less than 30 days, there must be two meetings with the delegates of the personnel, the second meeting being held at least 14 days after the first meeting. The same kind of information must be given to the same persons/body (delegates of the personnel and administration). A previous and individual discussion with the employees is not obligatory. A project of dismissal must be communicated to the administration between the two meetings held with the delegates of the personnel. The dismissals are notified to the employees at least 30 days after this notification to the administration.

B) When the task force amounts to 50 or more employees, there is again a distinction between the dismissal of less than 10 employees under a period of 30 days and the dismissal of at least 10 people under the same period.

a) In the first case, the employer has to:

Consult the work council of the firm,

Communicate to this council the aforementioned information (economical situation, reason of the dismissal, number of dismissals, etc.),

Have a discussion with each of the employees concerned,

Notify the dismissals to the employees (7 days at least after the discussion with the employees),

Inform the administrative authority of the dismissals (8 days at latest after the notification of the dismissals to the employees).

b) In the second case, the employer has to:

Set up a plan of safeguard of the employment ("plan de sauvegarde de l'emploi") providing concrete and precise measures in order to avoid the dismissals or limit their number (part-time jobs, reduction of the duration of the work, new activities, etc.).

Consult the work council of the firm,

Communicate to this council all the useful information regarding the dismissals and communicate the plan of safeguard,

Consult the work council of the firm a second time (14 days or 21 days at latest after the first meeting, depending on whether there are less than 100 dismissals or 100 and more dismissals planned),

Notify the project of dismissal to the administration,

Implement the measures provided in the plan of safeguard,

Notify the dismissals (30, 45 or 60 days at least from the communication of the project of dismissal to the administration, depending on the number of dismissals - less than 100, 100 and more but less than 250, 250 and more).

Do you have laws against discrimination, if so, what types of discrimination do you have and how are they defined?

There are laws against discrimination in a company. There can be no discrimination that would be based on the origin, sex, morals, sexual orientation, age, the domestic situation, the genetic characteristics, the belonging or non-belonging to a ethnic group, a nation, a race, the political opinions, the trade-union or mutualistic activities (activities on behalf of a mutual benefit society e.g. friendly society), the religious beliefs, the physical appearance, the name, the health condition or the handicap of an employee.

Do you recognise harassment and again, how is this defined?

Sexual as well as the moral harassment is recognised by the law.

Sexual harassment occurs when an employee is subjected to acts by another in order to obtain favours of a sexual nature for himself or for a third party.

Moral harassment occurs when an employee is subjected to repeated acts (one is not enough) the aim or effect of which may result in a degradation (deterioration) of his conditions of employment that might undermine his rights and his dignity, affect his physical or mental health or jeopardize his professional future.

What can an employee do about discrimination?

In case of harassment, the victim can start a conciliation procedure (this is not internal and a mediator must be accepted by both parties) or go to the court.

The lawsuit can also be made by the representative trade-unions on behalf of the employee. A dismissal that would be grounded upon the violation of the rules regarding the harassment would be void.

The author of harassment is liable to disciplinary and criminal sanctions.

What is an unfair dismissal?

An unfair dismissal is a dismissal that is not grounded upon a real and serious cause.

As regards an economic dismissal, it is unfair when the alleged reason turns out to be non-existent.

What can an employee do about an unfair dismissal?

The employee can go to the relevant court and ask for the payment of compensation.

If a dismissal is found to be unfair, what compensation can the employee obtain?

If the company employs at least 11 employees and if the employee dismissed had been in the firm at least for two years, he can obtain a compensation corresponding to a minimum of six months of salary.

Do you have collective/trade union law?

Yes.

If so, what rights does an employee have?

The representative trade-unions can create trade-union sections in the firm. In companies reaching a given threshold with regards to the workforce, they can designate one or several delegates in order to represent them close to the employer. Under certain conditions, an employee of the firm can become a delegate of a trade-union and will get an hour-credit in order to accomplish his mission, and he/she will also have a special protection, particularly with regards to dismissal (previous authorization of the Labor Inspection).

Does the employer have to accept collective/trade union law?

Yes.

Can any individual from another country come and work in your country?

Yes.

If so, is there immigration controls/work permits that need to be applied for?

An employee from abroad must have a permit of work, except in particular cases:

Citizens from the states members of the European Union,

Swiss workers, except during a transitory period of two years during which a permit is required,

Employees sent to France.

What criteria are used for any such applications?

The authorities will look at the employment position, the way in which the employer implements the labour laws, the conditions of work, remuneration and accommodation/housing, the technological and commercial interest.

What does an employer have to do if he receives an application from someone who is not a national in your country for a job?

The employer files a request of introduction of the foreign employee with a file constituted of:

An employment contract in several exemplaries,

A commitment to pay the fees due to the Office of International Migrations (OMI),

A questionnaire comprising information about the employee called for,

A questionnaire about the conditions of housing.

The file is transmitted to the qualified departmental director of labour.

If the request is susceptible to receive a favourable answer, the contract is stamped and transmitted to the OMI who then carries out the introduction of the employee and his health control. The employer is informed of the arrival of the employee who receives a permit to work.

What is the tax position for a foreign employee?

The persons whose fiscal dwelling-place is situated in France are subjected to the French income-tax as regards the whole of their incomes whatever the origin, subject to exceptions from international conventions regarding double taxation.

Are employees protected in the event of a sale or a purchase of a business?

In the event of a sale of a business, the purchaser has the obligation to take over the employment contracts in course of execution.

If so, what rights do employees have and what can they do about it?

A dismissal made on the occasion of a sale of business is deprived of effects. In the event of a violation of that rule, the dismissed employee can claim to the author of the dismissal the payment of the dismissal allowances and compensation.

What does the employer have to do in the event of a sale or a purchase of a business which includes employees?

The new employer has nothing particular to do but must refrain from making dismissals that would not be grounded upon a personal or economic cause.

What is the position regarding agents in your country, briefly outline how agents are dealt with and what documentation is required.

It is necessary to make a distinction between the representative of commerce (“représentant de commerce”) and the agent proper (“agent de commerce”).

The representative of commerce is an employee who has a particular status, provided that he accomplishes his functions in an exclusive way and refrains from making personal commercial operations.

The representative of commerce is generally remunerated with commissions, with or without a contractual guaranteed minimum (there is in any case a lump minimal remuneration provided by the law). In the event of a termination of the contract, the representative of commerce gets a goodwill indemnity, except if the termination was caused by a serious fault of the representative and provided that the representative justifies to have brought, created or developed goodwill.

The amount of the indemnity depends on the increase of the goodwill. In the event of a disagreement or when the estimation of the indemnity turns out to be difficult, tribunals usually grant a compensation corresponding to two years of commissions.

As regards the agent proper, this one is not an employee and carries out his activity independently. He must be registered on a special register of agents. His remuneration is made through commissions. The termination of the contract gives to the agent a claim to the payment of a goodwill indemnity, except in the event of a serious fault or if the rupture was made on the initiative of the agent himself, or else in the event of an assignment by the agent to a successor of the rights and obligations related to the contract. As well as for the representatives of commerce, the indemnity of the agents proper is often fixed at a level of two years of commissions.

Georges Demidoff

ACTS- - Société d'Avocats au Barreau de Paris

France