French employers, don’t neglect the language of Molière…

Cass. soc. 7 June 2023, no. 21-20.322 Do you speak english ? In a world where trade transcends borders, English is the language of choice for communication within many companies. However, you should bear in mind the provisions of article L.1321-6 of the French Labour Code: any document containing obligations for the employee or information essential to the performance of his or her work must be written in French. These provisions were recently reiterated by the Cour de cassation. The case concerned a French company - which belongs to a Group whose parent company is based in the United States - and a sales manager. He has signed a commission plan, in English, under which he will receive an advance of 1,000 dollars a month, or 12,000 euros a year. It is envisaged that in the event of termination of the employment contract, a deduction will be applied by the Company. The employee was dismissed for professional incompetence and, at the time of the dismissal, the company took back commissions. The employee considered that the commission plan, because it was written in English, was not enforceable against him and therefore contested the deduction made from his pay. The company took offence at this line of argument since, as the employee knew perfectly well, the working language was English and most of the emails exchanged between the parties were in English, including the working documents drawn up by the employee... While the Toulouse Court of Appeal agreed with the employer, the High Court did not. It reiterates the rule laid down in Article L. 1321-6 of the French Labour Code:

• Principle: any document containing obligations for the employee or provisions of which knowledge is necessary for the performance of his work must be written in French.
• Exception: this rule does not apply to documents received from abroad, intended for foreigners or if the employee is himself a foreigner (Cass. soc. 24 June 2015, no. 14-13.826).

But how do you know if a document is really foreign? To check the origin of the document, you should refer to the conditions under which it was drafted and initially transferred. When the document is not in French, the judges will check the origin of the document in question to determine whether it came from abroad or was intended for foreign employees. If this is the case, the French rule does not apply. In the case in point, the document setting the targets needed to determine the employee's contractual variable pay (the commission plan) had not been drafted in French and had not been received from abroad: the employee's claims were therefore well-founded. This is not the first time that the French-speaking world has been honoured in employment law:

• It has been ruled that the documents setting the targets required to determine the employee's variable pay must be drafted in French, regardless of whether the company's business is international in nature (Cass. soc. 3 May 2018, no. 16-13.736).
• The Court of Cassation allows objectives to be set in a foreign language if a French translation of the documents is, moreover, accessible to the employee via rapid distribution on the company's intranet site (Cass. soc. 21 September 2017, no. 16-20.426).

It is therefore important to be vigilant when it comes to documents that contain obligations towards the employee (for example, an employment contract, a job offer, a collective agreement), as the consequences can be far-reaching. In the case under review, the outstanding commission was €10,877.11 gross. However, it is essential to remember that, in addition to the unenforceability of the document given to the employee, the company risks a fine for a fourth-class offence, in the amount of 750 euros, which can be multiplied by five for legal entities, reaching 3,750 euros (articles 3 and 4 of decree no. 95-240 of 3 March 1995). Such sanctions underline the importance of respecting the language rules in force. Even in a world where English is often king, French remains the reference language for official documents in your company in France. Don't let the language of Shakespeare play tricks on you that could have serious consequences... Although there is an exception for documents received from abroad (or intended for foreign employees), as a precaution we recommend always having the employee sign the translation of the document. Otherwise, you will need to provide proof that it actually comes from abroad. As you will have realised, French remains an essential pillar. These rules should be kept in mind to avoid the pitfalls of international language and ensure transparent, risk-free communication with your employees.