Since 2016, the French Supreme Court had given the impression that they were setting aside the notion of the ‘per se harm’ that would result for the employee from a breach of an obligation by the employer (Cass. Soc., 13 April 2016, no. 14-28.293).
However, since the beginning of 2022, the French Supreme Court has reinsisted on the harm resulting per se from the employer’s breach of the working hours regulations, with a view to guaranteee the workers’ health and safety.
Background
An employee hired as an operating agent in 2009 brought an action before the Employment Tribunal seeking judicial termination of his employment contract and payment of various damages in relation to the performance and termination of his employment contract.
In particular, he was claiming damages on the grounds that the employer had breached its safety obligation (article L. 4121-1 of the French Labour Code), since the minimum daily rest period of 12 hours between two shifts set by the applicable collective agreement had not been complied with.
The Court of Appeal dismissed the employee’s claim on the grounds that he could not prove any specific prejudice. The employee then appealed to the French Supreme Court.
Decision
The French Supreme Court overturned the appeal ruling, holding that “the mere fact that the employee did not benefit from the twelve-hour daily rest period between two shifts entitles him to compensation“.
Thus, failure to comply with the minimum daily rest period guaranteed by a collective agreement applicable within the company necessarily constitutes a prejudice, for which the employees are entitled to claim compensation.
Consequences
This solution should also be extended to an employer’s breach of the legal provisions relating to the right to daily rest, which pursue the same objective of guaranteeing the health and safety of workers.
As a reminder, the French Labour Code provides for a minimum of 11 consecutive hours of daily rest, and 35 consecutive hours of weekly rest. Failure to comply with the provisions may, in addition to the aforementioned damages due to the employees, incur a financial penalty up to €3,750 per employee that did not benefit from this rest.
We therefore recommend increased care on compliance with minimum daily and weekly rest periods.
This is even more relevant as the French Supreme Court considers that the burden of proof for compliance with the minimum daily rest period, the minimum weekly rest period and the maximum number of worked hours lies with the employer (Cass. Soc., 10 May 2023, n°21-23.041).