The resurgence of necessary prejudice

(Cass. soc., Sept. 27, 2023, no. 21-24.782 , F-B)

In a decision dated September 27, 2023, the French Supreme Court (Cour de cassation) ruled that exceeding the maximum working week for night shifts automatically gives rise to a claim for damages.

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• Definition of “necessary prejudice

In civil law, the general principle is that of full compensation for loss, which means that only the loss suffered by the victim should be compensated, without any loss or gain for the victim. (Cass. 3rd Civ. January 12, 2010, no. 08-19.224)

In other words, in principle, compensation must make good all the damage, but only the damage, without exceeding the amount of the loss. (Civ. 2nd, Nov. 9 1976, n° 75-11.737)

The idea is to put the victim back in the situation he or she would have been in had the alleged fault not been committed (Civ. 1st July 17, 1996 n°94-18181 Bull Civ. 1 n°327).

However, labor law regularly derogates from this principle through the “necessary prejudice” principle.

Prejudice is said to be necessary when a judge considers that the victim does not have to justify the extent of his prejudice in order to obtain compensation.

In other words, the damage is deduced from the employer’s fault, without the employee even having to present evidence to show that he or she has suffered prejudice as a direct result of this fault. (L . Gratton, Le dommage se déduit de la faute: RTD civ. 2013, p. 275 et s.).

The damage is thus presumed and, in practice, impossible for the employer to usefully contest: as soon as his breach is recognized, he is condemned.

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• The development of the theory of necessary damage in labor law

Initially, the “necessary” or “automatic” prejudice was recognized by the Cour de cassation in many areas of employment law:

• failure to mention in the notice of dismissal the priority of re-employment in the event of redundancy for economic reasons (soc., Dec. 16, 1997, no. 94-42.089)
• non-compliance with dismissal procedure (soc., Feb. 18, 1998, no. 95-42.500)
• the invalidity of a non-competition clause (soc., Jan. 12, 2011, no. 08-45.280)
• the failure or even simple delay in issuing the unemployment insurance certificate necessarily entails a loss that must be made good by the lower courts ( soc., Sept. 17, 2014, no. 13-18.850)
• failure to mention the applicable collective bargaining agreement on the pay slip ( soc., March 4, 2015, no. 13-26.312)

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• The reversal of principle by the Chambre Sociale, April 13, 2016

This jurisprudence of the Cour de cassation’s social chamber came to a halt on April 13, 2016, when it laid down the principle that ” the existence of a loss and its evaluation are matters for the sovereign discretion of the trial judge “(Cass. soc., Apr. 13, 2016, no. 14-28.293).

In other words, this ruling established the principle that any prejudice must be justified and could not be the subject of “automatic” or “necessary” compensation, thus reconciling labor law with general civil law.

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• Applications of this jurisprudential reversal

Since then, the Cour de cassation has made a number of reversals in its case law, ruling that an employer’s breach may not have had any harmful consequences.

This was the case for :

• failure to provide information on the collective agreement (soc., May 17, 2016, no. 14-21.872) ;
• unlawfulness of the non-competition clause (soc., May 25, 2016, no. 14-20.578) ;
• failure to deliver or late delivery of documents necessary for the exact determination of the employee’s rights (soc., Apr. 13, 2016, no. 14-28.293; June 16, 2016, no. 15- 15982) ;
• failure to comply with dismissal procedure (soc., June 30, 2016, no. 15-16.066).
• employer’s failure to organize a medical examination (soc., June 27, 2018, n°17-15.438) ;
• failure to draw up a single risk assessment document (soc., September 25, 2019, n°17-22.224) ;
• failure to comply with the rules relating to the order of dismissals (soc., February 26, 2020, n°17-18.136, n°17-18.137, n°17-18.139);
• failure to organize by-elections (soc., November 4, 2020, no. 19-12.775).

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• The return of the theory of necessary prejudice for certain serious breaches, confirmed by this decision of September 27, 2023

Paradoxically, however, the Cour de cassation has regularly issued the opposite ruling, referring to the theory of “necessary prejudice”, by way of exception, when :

• the employee unjustifiably loses his job ( soc. September 13, 2017 no. 16-13.578 FP-PBRI)
• the employer has not set up staff representative bodies or has not taken the necessary steps to set them up, in the context of a redundancy procedure ( soc. October 17, 2018 n° 17-14.392 FS-PB)
• the maximum weekly working time is established (Cass. Soc. January 26, 2022, no. 20-21.636 FS-B)
• daily and weekly rest periods are not respected ( Soc. December 14, 2022, n°21-21.411 F-D)
• the maximum daily working time is exceeded ( Soc. May 11, 2023, no. 21-22.281 FS-B)

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Thus, on September 27, 2023, when it censured the Court of Appeal which dismissed the employee’s claim for damages for non-compliance with the maximum weekly night working time, without noting that the employer had justified compliance; this is tantamount to considering that exceeding the maximum weekly night working time automatically gives entitlement to damages. (Cass. soc., Sept. 27, 2023, no. 21-24.782 , F-B)

In summary, one principle seems to be emerging, that of the return of the theory of necessary damage, principally in the case of infringement of European rules on working time, which in itself gives rise to a right to compensation.

The door is wide open to all kinds of financial abuse.

On the other hand, the Cour de cassation does not appear to have abandoned this theory for less serious breaches by the employer.