As was perfectly summarized in Le Monde on 22 January 2018: "It is difficult to find the right balance between the flexibility expected by managers/executive employees working a fixed number of days per year and reinforced by the new forms of work (telecommuting, home office, co-working ...) and the potential drifts of excessive hourly workload.
However, an obligation to control the employee's workload weighs on the employer in that he must regularly ensure that the employee's workload is reasonable and allows for a proper distribution of his working schedule (Art. L.3121-60 of the French Labor Code).
Labor Courts ensure that this requirement, which is intended to ensure the health of employees working in days per year ("forfait jours") is respected, particularly in terms of maximum working hours and daily and weekly rest periods (Cass. soc., 29 June 2011, n°09-71107).
To do this, the employer must in particular:
- Set up a declarative statement, on a monthly basis, signed by the supervisor and validated by the human resources department, along with a possibility to warn the hierarchy in the event of difficulty, and of requesting an interview from the human resources department (Cass. soc., 8 September 2016, n°14-26256).
- Run a control of the number of days or half-days worked by the employees working in days per year and raise during the annual interview the questions of organization and workload of the employees as well as the amplitude of their working days (Cass. soc., 23 January 2019, n°17-22148).
- Ensure that the employees working according to a days-per-year scheme comply with the mandatory daily and weekly resting periods and comply with the provisions of the collective bargaining agreement designed to protect the health and safety of employees working in days per year (Cass. soc., 19 December 2018, n°17-18725).
That being said, the case law has recently added that the employer must not control the planning of employees with a working time in days per year (Cass. soc., 27 March 2019, n°17-31715), who must indeed benefit from a sufficient autonomy in scheduling their work.
In the same time, the CJEU, to which the Spanish Tribunal Supremo referred a question, has just rendered a decision in which it makes a very strong reminder of the obligations to monitor its employees' workload by the employer (CJEU, 14 May 2019, C-55/18 Federación de Servicios de Comisiones Obreras (CCOO) / Deutsche Bank SAE). Based on the Charter of Fundamental Rights of the EU, and the European working time directive, the Court declares that those rules preclude national laws that, do not require employers to set up an "objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured", such processes being fundamental as far as the rights to health and rest of the employees are concerned.
Some see in this decision a step back to a clock-in system. As far as France is concerned, one can also see here a mere – although very firm – reminder of principles already set out by the L&E Section of the French Highest Court since 2011 with a series of nullification of working time schemes in days per year in several Nation-wide CBAs (Cass. soc. 29 juin 2011, n°09-71107), following decisions of the European Committee of Social Rights in 2004 and 2010.
These successive decisions make no less complex the use of days-per-year schemes and continue to promise many requests for payment of overtime by employees at the occasion of their Court claims against their dismissal ... or when the rigor of the law creates a deadweight effect.
It is therefore highly recommended to remain very cautious in the use and implementation of days-per-year schemes!
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