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Abusive contract employment

Updated: Feb 28

Better Call Eva

Last article, we were talking about abusive clauses inserted in contracts between service providers and customers.

Unfortunately, and as you can imagine, they are also frequent in employment contracts.

📕 As a reminder, an abusive clause in a contract is a paragraph that creates a significant imbalance between the rights and obligations of the signatories of the contract, to the detriment of the employee.

💡 Note: Any clause a priori abusive is not necessarily so, if its scope is clear and well defined. Their legality will therefore depend on their wording and their specific context.

A certain tolerance is sometimes left to the infringement of a freedom, if and only if it is justified by the nature of the task to be accomplished and proportionate to the aim sought.

🔎 The perfect example: clothing freedom. It can be bypassed for health or safety reasons. 👷🏼‍♂‍☢‍

If you are in the construction industry and you are forced to wear safety shoes, that is understandable. On the other hand, if you work in a bank and you are asked to wear a cap, you may ask yourself questions. Finally, you MUST ask yourself questions. But that's just my opinion.

Beyond the attacks on fundamental freedoms traditionally prohibited by law, and of which we know almost all the main lines (freedom of conscience, respect for private life, etc.), certain more subtle clauses are also prohibited. ❌

Some examples:

🔸 The non-competition clause

It stipulates that the employee does not have the right to carry out the same activity with a competitor after having left the company. It will only be legitimate if it is justified, limited in time, and if it gives the right to compensation in return.

🔸 The clause recommending the reason for dismissal

In terms of dismissal, the principle is that only the judge can assess whether the facts constitute a real and serious cause for dismissal. It is therefore not possible for an employer to provide grounds for dismissal by a clause inserted in the contract.

👩🏻‍⚖‍ Ex. In 2014, a salesperson was fired following the loss of his driver's license, which prevented him from carrying out his activity. The Court of Cassation annulled the dismissal.

🔸 The retirement clause, known as the “cleaver clause”

And yes. If we mention it, it's because it exists, as far-fetched as it may seem.

It is therefore prohibited to provide by a clause for the termination of the employment contract due to the age of the employee, or his right to an old-age pension. Only the employee can decide.

🔸 The financial penalty clause for misconduct

Would miss more than the boss put us plums! Deductions from wages are prohibited. ⚠️

👩🏻‍⚖‍ Ex. A developer who accidentally breaks the computer equipment provided to him should not be financially impacted by deductions or refunds.

But then what? 😩

To be continued in the next episode! 🥳

Better Call Eva


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