Annual working time in days arrangements: the Cour de cassation stands firm on workload monitoring

Cass. Soc., January 10, 2024, n°22-15.782   and Cass. Soc., January 10, 2024, n°22-13.200 

In two cases decided on  January 10, 2024, the French highest civil court (Cour de cassation) clarified the extent of the employer’s obligation to monitor the workload of staff employed pursuant to a working time in days arrangement (“convention de forfait jours”) and stressed  the importance of  this issue…

When the employer fails to implement  the statutory minimal workload monitoring measures, the working time in days arrangement – is rendered ineffective.

To be valid,  a working time in days arrangement  must be established pursuant to a collective agreement providing, in particular, for a certain number of guarantees relating to the monitoring of the employee’s workload. 

Where the collective agreement does not provide such monitoring measures, the employer may  enter into a working time in days arrangement , provided that he unilaterally implements a certain number of statutory minimal measures , as set out in article L. 3121-65 of the French Labor Code. 

In the first matter, this was not the case as: 

– The employee had to fill in a document tracking his days worked under the responsibility of his employer, but was not allowed who had forbidden him to make any corrections: under these conditions, this document did not reflect the reality of his working hours, 

– The employer failed to provide evidence that  an annual meeting had been held with the employee to discuss his workload. 

In such a situation, the highest civil Court upheld the lower court’ decision to rule that the working time in days arrangement  was null and void. 

In the absence of a valid collective agreement, and of implementation  of statutory minimal measures enabling the system to be compliant, the very conditions for the validity of the working time in days arrangement are lacking. 

Internal company constraints, and the subsequent rectification of defaults, do not excuse the employer’s failure to meet its employee workload monitoring obligations

In the second case, the collective agreement setting up the working time in days arrangement was not deficient, but the employee considered that his employer’s application of such agreement was incorrect…

In particular, he complained about  a lack of follow-up, consisting in the employer’s failure to organize  an annual meeting in 2018, as provided for in the collective agreement,  a lack of respect of the weekly rest period, as well as exceeding the maximum working hours and number of days mandated by the agreement. 

 To dismis the employee’s claims, and rule in favor of the employer, the lower court considered that, : 

– The employer had been forcedto report legitimately the 2018 interviews to early 2019, due to the resignation of his Managing Director at the end of the year, who was not replaced before January 2019, 

– The additional days worked by the employee had all been recovered or paid, so that he was not prejudiced. 

The highest civil court adopted a different approach andjuged  that :

– the  constraints invoked by the employer do not constitute a valid reason, since the employee had complained since 2017 about  the serious adverse impact of his workload and failure to respectf the weekly rest period, notably in 2018, 

–  the employer’s failure to comply with the working time in days arrangement and weekly rest period, together with the absence of remedial steps amounted to a breach of his safety obligations.