Automatic prejudice: the return!

The Social Division of the French Supreme Court (Cour de cassation) enshrines the principle of an automatic/necessary employee prejudice based on health protection.

A legal curiosity peculiar to employment law, and a contentious snake of the sea, “Automatic Damages” or “Necessary Damages” made a comeback in a ruling handed down by the Social Division on February 7 (Cass Soc February 7, 2024, no. 21-22.809 FS-B).

In the law of obligations, the existence of a compensable prejudice, in the context of a liability claim, presupposes, in addition to the demonstration of a breach and a causal link, the demonstration by the alleged victim of the existence of a compensable prejudice.

However, at the end of the 90s, in contradiction with the fundamental principles of the law of obligations and legal requirements, the Social Division of the French Supreme Court (Cour de cassation) developed the theory of “necessarily compensable loss” in labor law, according to which an employer’s failure to meet its obligations automatically resulted in loss.

This jurisprudential construction, which in fact exempted the plaintiff employee from proving his prejudice and forced trial judges to empirically rate the compensation awarded, was notably retained by a ruling in April 2003 concerning compliance with the compulsory information required in a notice of dismissal interview (Cass Soc April 29, 2003, no. 01-41.364 FS-B).

Since a decision on April 13, 2016 (no. 14-28.293), it had been accepted in practice – perhaps a little too quickly – that the Social Division of the Court of Cassation had put an end to the theory of automatic prejudice, with judges regularly ruling since the said decision that the mere finding of a breach by the employer no longer entitled the employee, per se, to damages.

However, this abandonment was only temporary.

“In early 2022, Necessary Prejudice made a remarkable comeback in the context of three rulings handed down by the social chamber of the Court of Cassation.”

In its first ruling, the Court held that the mere fact that an employee’s image rights had been infringed gave rise to a right to compensation for the employee.

In the second rulings, based on article L3121-35 (now L3121-20) of the French Labor Code, interpreted in the light of article 6 b) of directive no. 2003/88/EC of the European Parliament and of the Council of November 4, 2003, the Cour de cassation censured the trial judges in a firm reasoning: “In so ruling, whereas the mere fact that the maximum working time has been exceeded gives rise to a right to compensation, the court of appeal violated the aforementioned text”.

Court of Cassation, Social Division, January 19, 2022, no. 20-12.420 and 20-12.421

Court of Cassation, Social Division, January 26, 2022, No. 20-21.6363

A judgment handed down in September 2023 confirmed this approach, with reference to the objective of guaranteeing the health and safety of workers through the provision of adequate rest and effective compliance with maximum working time limits, as embodied in the Directives of November 4, 2003 and March 11, 2002 on the organization of the working time of persons performing mobile road transport activities.

(Cass Soc September 27, 2023, no. 21-24.782)

The Ruling of February 7, 2024, which will be widely published, clearly confirms this principle.

In this case, the Court ruled that the mere objective failure to comply with the requirements of a collective agreement imposing rest periods between two periods of work conferred on the employee the status of victim and gave rise to a right to compensation in his favor, without the latter having to justify any specific prejudice.

Thus, the mere fact that the employee did not benefit from the 12-hour daily rest between two shifts, a rest provided for by collective agreement, gives rise to a right to compensation.

The Chambre sociale adopted the same reasoning, pointing out that the said agreement contributes to the objective of guaranteeing the health and safety of workers through the provision of adequate rest and effective compliance with the limits on maximum working hours set out in Directive 2003/88/EC of November 4, 2003.

(Cass Soc February 7, 2024, no. 21-22.809 FS-B)

The French Social Court is now clear: failure to comply with contractual rules that are more favorable than the law can give rise to a necessary prejudice.

The necessary prejudice is back.

In short, like the fanny pack, a key accessory of the 2000s, the necessary prejudice is back on the podium.

Litigants can only regret the uncertainty created by the effects of fashion, and the difficulty of distinguishing between breaches that automatically generate prejudice and those that do not.

This appears to be the case for late payment of wages, with the Chambre sociale rejecting the prejudice required last December in such a case.

(Cass Soc December 13, 2023, no. 22-19.121)

For their part, consultants will be recommending the development of genuine HR compliance policies, particularly in the areas of working hours and safety, as purely risk-based thinking and the demonstration of specific harm are clearly no longer “in vogue”.