Monday, February 15, 2016

Towards a reform of redundancy? – The

Will The future law Myriam El Khomri amend the Labour Law to touch the rules governing redundancies? According to Les Echos, it’s not impossible … but not yet certain, arbitration executive is expected. It must be said that the subject is highly sensitive politically and legally very delicate. And the consequences of such a reform are not necessarily easy to understand. It is therefore understood the hesitation of the government.

According to Les Echos, Bill would better define the “causes” admitted to conduct a redundancy. One way to encourage companies to recruit under permanent contracts (CDI) by giving more guarantees on economic grounds “real and serious” that could lead to rupture of the CDI. An old employer’s claim. Medef and CGPME even suggest that predetermined breaking grounds contained in the employment contract. For example, a redundancy would be justified if the company suffers for three or four consecutive quarters of decline in sales. Thus, the employee would know what to expect upon conclusion of the contract.

Provide more precisely the “cause” of a redundancy

C ‘ is a little on the idea that the government plancherait. It thus looks at what is happening in Spain in the field. Since the reform of the Spanish labor market in 2012, a company can make a redundancy if it meets “persistent difficulties” . And Spanish law defines persistence as “the decrease will be persistent if, for three consecutive quarters, the level of ordinary revenue or revenue from sales of each quarter is lower than the level recorded in the same quarter of the previous year. “ true, it is not at all certain that the bill resumes in the Spanish definition identical. But the idea would be to “secure” a redundancy by providing a broad economic criteria based on the drop in activity and / or turnover. The employer could then “hide” behind this criterion to justify termination.

But then attention to litigation on the dispute by employees of the structural nature of the deteriorating economic situation of the company, on any payment of dividends to shareholders on executive compensation, etc. And if they return to good fortune, the dismissed employee he will have a rehiring priority?

the concept of “protection of competitiveness” in the Labour Code?

according to Les Echos, the government would explore another track
recall that, currently, the Labour Code defines the economic redundancy.

” is an economic redundancies dismissal effected by an employer for one or more reasons not related to the individual workers concerned resulting from removal or manual processing or modification, refused by the employee, a key element the employment contract, including consecutive economic difficulties or technological changes. “

This is the legal definition. But case law has also played a role, including the very important decision “Videocolor” Social Chamber of the Court of Cassation held that: “ when it is not linked to economic difficulties or technological changes, reorganization can be an economic basis that if done to safeguard the competitiveness of the industry. “

the concept of protection of competitiveness was therefore introduced by this jurisprudence. But if this idea can justify a redundancy, the company must, however, support his explain the “real danger” that weighs on competitiveness. So the government would consider integrating this jurisprudential principle to “safeguard competitiveness” in the Labour Code still to secure business. The question is to what extent the concept of protection of competitiveness could be used? Jurisprudence is also abundant on this issue.

Limit the power of the judge

Remember that it is for the moment only working tracks. The Myriam El Khomri bill will be finally released on March 9. But one thing is certain, if these innovations become reality, it would be largely in the direction desired by employers to secure business, including SOHO / SME. Indeed, the new rules would limit the judge’s interpretation power. P to the largest enterprises, the rules of collective redundancy – including for collective dismissals requiring social – have been extensively renovated and framed by the Sapin law of June 2013 on the security of employment


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