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French Employment law : Discrimination and “référé” article 145 of French Code of Civil Procedure:...

In its decision of October 17th 2019, the Labor Court of Paris (référés), ruling in summary proceedings, orders on the basis of Article 145 of the French Code of Civil Procedure to the company to produce the register of entry and staff release (period 2008 to 2018) and payslips (period 2016 to 2018) of 16 of Ms. X's colleagues.

The parties may appeal the order.

1) Reminder of the facts

Ms. X was hired, as of June 15, 2008, as Accounting Manager in the general accounting department of RE: SOURCES FRANCE, for an average monthly salary of € 3,667 for a 35-hour weekly schedule.

Ms. X was placed under the responsibility of a supervisor, Mrs. Y, who was under the responsibility of Mr. Z.

As of November 2009, Ms. X was on sick leave for 4 months due to hospitalization due to the declaration of a serious and chronic autoimmune disease.

On her return, while Ms. X resumed her position in therapeutic part-time, in accordance with the recommendations of her doctor and the occupational physician, she discovered that her duties and her office had been entrusted to another employee.

No part-time work rider was regularized according to his therapeutic part-time.

In April 2013, she was classified in first category disability and continues her collaboration in "part-time disability" starting in June 2013.

Ms. X was notified of her dismissal for professional deficiencies on August 28, 2018.

Believing that she had been the victim of discrimination based on her state of health, manifested by a lack of evolution of her salary for several years, Ms. X appealed to the Labor Court of Paris in her summary hearing. April 25, 2019 of a request for documents by the employer.

2) Decision of Paris conseil de prud’hommes dated October 17, 2019 (départage référés)

The Parisian Conseil de prud'hommes sitting in summary proceedings, ruling by contradictory order and at first instance:

• Orders RE: SOURCES FRANCE to produce the following documents within one month of the notification of this decision and under an overall penalty of 50 euros per day of delay for four months:

- The register of entry and exit of the staff of the company RE: SOURCES FRANCE for the period 2008/2018;

- The pay slips for the years 2016, 2017 and 2018 as well as the payslips for the month of December of each year since they hired the 16 employees referred to in the plaintiff's conclusions;

• Condemns the company RE: SOURCES FRANCE to pay Ms. X a sum of 800 euros on the basis of Article 700 of the Code of Civil Procedure;

• Recalls that this order is subject to provisional execution by operation of law.

2.1) In law

According to Article R. 1455-5 of the Labor Code, the preliminary ruling may, within the limits of the jurisdiction of the industrial tribunals, order all measures which do not meet any serious challenge or which justify the existence of a dispute;

According to Article R. 1455-6 of the same Code, the preliminary ruling can always, even in the presence of a serious dispute, prescribe the necessary conservatory or reinstatement measures, either to prevent damage imminent, either to stop a clearly unlawful disorder;

It follows from the provisions of Article L. 1132-1 of the Labor Code that no employee may be the subject of a discriminatory measure, direct or indirect, particularly as regards remuneration, because of its origin, sex, morals, sexual orientation, age, marital status or pregnancy, genetic characteristics, membership or non-membership, true or supposed, of an ethnic group, nation or race, its political opinions, its trade union or mutualist activities.

Article L. 1142-1 of the French Labor Code provides that no one may refuse to hire a person, make a transfer, terminate or refuse to renew the employment contract of an employee in consideration of gender, the status of family or pregnancy on the basis of different selection criteria according to sex, family status or pregnancy.

Article L. 1144-1 of the French Labor Code provides that when a dispute arises concerning the application of the provisions of Articles L. 1142-1 and L. 1142-2, the candidate for a job or the employee presents elements in fact suggesting direct or indirect discrimination on the grounds of sex, family status or pregnancy. In the light of these elements, it is incumbent on the defendant to prove that its decision is justified by objective factors unrelated to any discrimination.

In accordance with the provisions of Article 145 of the Code of Civil Procedure, if there is a legitimate reason for keeping or establishing before any trial the proof of facts which could be relied on in the solution of a dispute, the measures of inquiry lawfully may be ordered at the request of any interested party, on request or in summary proceedings.

It is a matter of principle that this procedure is not limited to the preservation of evidence and may also tend to their establishment.

2.2) In this particular case

The departing judge states that "In this case, the employee establishes the stagnation of her earnings as of her health difficulties and justifies having lodged claims with the employer as of 2011, also surprised by the absence of payment of the balance sheet premium she received prior to her sick leave.

In view of the elements of the discussions, it appears that the employee has a monthly increase of 40 euros in 2013, on the occasion of its passage to the package / days then 50 euros in June 2018, a monthly increase of 90 euros on eight years, as part of a general increase.

This situation is verified by the Accounting Director, Mrs Y, who indicates: "Every year, the supervisors evaluated the employees of their team and consulted each year with Mr. Z about increases in salaries and bonuses. From 2010 to 2016, I asked for an increase and bonus each year for Mrs. X, which I was very satisfied with. Mr. Z always put his name on the list (...) and deliberately blocked Ms. X's salary, I noticed that he was working on her, she is the only employee I saw in the team general accounting have no salary increase for many years ".

It therefore appears that the applicant has a legitimate reason for requesting the disclosure of documents in order to support any action on the basis of discrimination, since the anonymised documents produced by the employer do not allow a valid examination to be carried out. the wage situation ".

The presiding judge points out that "it should be recalled that respect for the private lives of employees can not in itself constitute an obstacle to the application of the provisions of Article 145 if the measure sought is based on a legitimate ground and is necessary to preserve the rights of the plaintiff ".

The Labor Court partially grants its request and order RE: SOURCES FRANCE to produce the following documents, within one month from the notification of this decision and under an overall penalty of 50 euros per day late for four months:

- The register of entry and exit of the staff of the company RE: SOURCES FRANCE for the period 2008/2018;

- Pay slips for the years 2016, 2017 and 2018 as well as payslips for December each year since the hiring of the 16 employees referred to in the Plaintiff's submissions.

It is allocated to the plaintiff a sum of 800 euros on the basis of Article 700 of the Code of Civil Procedure. The company RE: SOURCES FRANCE will be rejected of its request in this respect.

In a similar case, in an decision of April 6th 2018, the Labor Court of Paris (référés départage) had ordered FRANCE TELEVISIONS to communicate the career assessment of 19 of its employees (see our article - Discrimination: FRANCE TELEVISIONS must communicate to a salaried journalist the career assessment of its 19 colleagues – https://www.village-justice.com/articles/discrimination-the-proud-men-order-france-televisions-communicate,29113.html )

Article in French : Discrimination et référé article 145 du CPC : une salariée obtient les bulletins de paie de ses 16 collègues

https://www.village-justice.com/articles/discrimination-refere-article-145-cpc-une-salariee-obtient-les-bulletins-paie,32853.html

Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

.Paris: 4 rue Bayard 75008 Paris tel: 0142560300

.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644

.Lille: 25, rue Gounod 59000 Lille tel: 0320135083

 

 

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