The fixed daily rate agreement is null and void if the employer is late in organising the annual meeting, even if this is justified by internal constraints.

In a ruling handed down on 10 January 2024 (Cass. soc., 10 Jan. 2024, no. 22-13.200), the Court of Cassation confirmed its strict interpretation of the provisions of the Labour Code relating to fixed-term working time, penalising an employer who, despite justified internal constraints, had organised the annual meeting specific to fixed-term working time two months late.

In this case, the Managing Director of the company resigned on 31 December and his replacement took up his post on 21 January. The annual interview for the employee on fixed working days was held on 6 March.
Too late for the Cour de cassation.

The judges also found that the employee on a fixed daily rate had exceeded the number of days provided for in his fixed rate three years in a row nd had not systematically taken his weekly rest periods, and criticised the employer for not having taken all the necessary measures to limit the employee’s workload.

The Court of Cassation justified its decision on three legal grounds:
 

• Firstly, under the terms of Article L3121-65 of the French Labour Code, as well as collective agreements implementing the fixed working day, the employer must organise a specific meeting with the employee at least once a year to discuss his workload, which must be reasonable, the organisation of his work, the balance between his professional activity and his personal life, and his remuneration.
• Secondly, Article L3121-60 of the French Labour Code (which applies as a matter of public policy) stipulates that the employer must regularly ensure that the workload of an employee on a fixed working day arrangement is reasonable and allows the work to be spread out over time. 
• Thirdly, the Court of Cassation relies on the general principle set out in Article L4121-1 of the French Labour Code to reiterate that the employer must guarantee the health and safety of its employees.

Companies should therefore learn three lessons from this ruling :

• It is imperative that the employer organises specific interviews on fixed working days once a year, regardless of internal constraints or the possible absences of managers;
• The employer may not regularly allow an employee to exceed the duration of the package day;
• As soon as the employee raises an alarm about his workload, or is unable to benefit from his daily and weekly rest periods, the employer must meet with the employee and take appropriate measures.

Once again, the Court is uncompromising on the effective and regular monitoring of the workload of employees on fixed working days.

If the employer fails to comply with all the provisions of the Labour Code and the collective agreement, the employee is deemed to have worked a 35-hour week, and may therefore be entitled to overtime pay for the last three years (if he or she has actually worked overtime), or even damages for the employer’s failure to fulfil his or her health and safety obligations.