FRANCE Law and Practice Contributed by: Laetitia Tombarello and Audrey Demourgues, Bredin Prat
salary payable to the employee for the period between the dismissal and the ruling on its nullity. 8.2 Anti-Discrimination Definition The French Labour Code prohibits direct and indirect discrimination – ie, measures that are apparently neu - tral but result in a particular disadvantage for specific persons compared with others, due to discriminatory criteria. Discrimination is defined to be based on age, race, nationality, origins, gender, sexual orientation, marital status, handicap and disability, religion, preg - nancy, home location, and trade union affiliation. Duty of Care Employers have a duty of care with respect to their employees’ health and safety, and must provide a working environment that is free of discrimination. In particular, they may be held liable for the discrimina - tory actions of each of their employees if those acts are carried out in the context of their employment, even if it was without the approval or knowledge of the employer. Burden of Proof An employee who alleges discrimination on the basis of one or several of the criteria mentioned above has a lighter burden of proof: • the employee must invoke only facts likely to dem - onstrate discrimination; and • conversely, the company has to demonstrate that the difference of treatment observed in the facts brought by the employee is justified by objective non-discriminatory elements. Claims If a company is found to have discriminated unlawfully against an employee, the Labour Court can: • declare the discriminatory act null and void (in par - ticular, a dismissal or a sanction); and • order the employer to pay damages to the employ - ee. In addition, an employee who is repeatedly discrimi - nated against by their employer is entitled to claim that they have been constructively dismissed, provided
that they can prove that the facts are serious enough, and to claim related compensation on the grounds of unfair dismissal (severance indemnity, indemnity in lieu of notice period, unfair dismissal indemnity of at least six months of salary, etc). As per the French Criminal Code, refusing to hire an employee or disciplining or dismissing an employee on discriminatory grounds are also criminal offences punishable by up to three years of imprisonment and a fine of up to EUR45,000 (for the company legal rep - resentative) or EUR225,000 (for the company itself). 8.3 Digitalisation While procedures and discussions with the French administrative authorities have become increasingly dematerialised (such as the submission of collective bargaining agreements, collective redundancy docu - mentation or mutual termination agreements through online governmental platforms), dispute resolution in France still typically requires “in person” meetings/ proceedings. Conducting court proceedings via video remains very rare, based on exceptional circumstanc - es (such as during the COVID-19 pandemic). Individual employment disputes between employers and employees are referred to the relevant Labour Court ( conseil de prud’hommes ), which is a tribunal composed of judges selected by the employee trade unions and the representative employers’ organisa - tions at a national level. A judgment panel includes an equal number of employee and employer repre - sentatives. In addition, the Civil Court ( tribunal judiciaire ) has juris - diction to hear all collective employment disputes, particularly in respect of collective negotiations and strikes, and matters concerning electoral law and elections in the workplace. Class Actions Since 2016, certain associations have been allowed to launch class action claims before the Civil Court in 9. Dispute Resolution 9.1 Litigation Relevant Courts
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