For the first time, the French Supreme Court ruled that, when an annual lump-sum agreement expressed in days is cancelled, the employer may claim reimbursement from the employee for the "days of reduced working time" (RTT) granted to the employee under this agreement.
The annual lump-sum agreement expressed in days allows companies to remunerate some of their employees (generally executive employees who have a large degree of autonomy in organizing their working hours) based on a number of days worked annually, without counting the working time.
One of the compensations for the employee is the allocation of additional days off called “days of reduced working time” or “RTT”.
However, this system is strictly governed by the French Labor law and must comply with certain conditions, in particular: the existence of a collective agreement providing for it, a document recording the days worked by the employee, the holding of professional interviews to monitor the workload and the balance between the employee's professional and personal life…
If the company does not ensure compliance with these conditions, the employee may challenge the application of this annual lump-sum agreement and request its cancellation.
The main consequence of this cancellation is to consider that the employee was actually performing his employment contract on a 35-hour work week basis (legal working hours) and that all hours worked in excess of this should have been paid as overtime (it being specified that overtime is paid as an increase in salary).
The employee is therefore entitled to claim from the company the payment of salary reminders as overtime, as long as he proves to have actually worked them.
In practice, it is easier for an employee to prove overtime than for the company to contradict the reality of overtime, as Labor courts are very lenient with employees on the evidence they produce to show the overtime they would have worked.
For the French Supreme Court, it is sufficient for the employee to present “precise elements” relating to the overtime he claims to have worked. By “precise elements”, the Court admits, for instance, that the employee may draw up a summary table of the overtime worked, without specifying the working hours or the daily calculation of his working time, admitting, moreover, that this table may be drawn up retrospectively.
It is then the employer's turn to present the elements at his disposal to prove that the overtime hours claimed by the employee have never been performed. However, in practice, it may be very difficult for the employer to challenge these overtime hours.
This is why the new decision of the French Supreme Court is important as it ensures a "rebalancing" in favor of the company, allowing the latter, because of its possible inability to contradict the overtime claimed by the employee, to at least be able to claim the reimbursement of the RTT days granted within the framework of a cancelled lump-sum agreement.
The French Supreme Court considers that the cancellation of this lump-sum agreement has the effect of questioning the benefits that were granted to the employee in the context of the performance of this agreement and justifying their reimbursement.
This decision is particularly interesting as it could actually be used by the company to claim the reimbursement of any benefit, other than RTT days, which the employee would have enjoyed exclusively within the framework of this cancelled agreement.
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