Cour de cassation, civile, Chambre sociale, 11 octobre 2023, 22-13.770, Publié au bulletin
While it is totally unrelated to any legal preoccupation, this quote by famous former French rugby player Sébastien Chabal, made during Rugby World Cup 2007 in France seems nonetheless befitting as history seems to have a way to strangely repeat itself, both on the pitch and in courtrooms!
In a recent decision, the French highest civil jurisdiction, the Cour de cassation, reminded that bonus plans and target-setting documents which are not drafted or translated in French cannot be enforced against the employees. Consequently, negligent employers may be sentenced to pay the corresponding bonus to the employees – in spite of the bonus targets or conditions.
In the spirit of the Villers-Cotterets Ordinance – a 1539 act by François 1er establishing the supremacy of French language over Latin in what was then the kingdom of France – the French Labour code nowadays provides that :
- The employment contract is drafted in French – although a foreign employee may request a translation in his/her native language – and otherwise is not enforceable by the employer (Article L. 1221-3 – Code du travail).
- Any document setting an employee’s duties, or required for an employee to perform his/her work must be in French – with one major exception if the documents are received from abroad or meant for foreigners (Article L. 1321-6 – Code du travail).
Unsurprisingly, the principle that was initially meant to tackle Latin in the Renaissance France, is in modern days mostly applied to foreign languages – and most particularly English. The French courts thus had plenty of occasions to apply the above-mentioned legislation to the use of English in a work environment.
For instance, a group policy on variable remunerations and a stock options plan drafted in English could not be relied upon by an employer to deny its employee the corresponding payments (Cour de cassation, civile, Chambre sociale, 29 juin 2011, 09-67.492).
The French supreme court opened a breach in its own case-law by admitting that, under some circumstances, the “international nature” of the company’s activity may justify an exception and allow to use documents necessary for the performance of the employment contract without a translation. However this case concerned an airline and could mostly be explained by understandable safety concerns (i.e.: the capacity of employees to refer to English documents to safely operate the flights – Cour de cassation, civile, chambre sociale, 12 juin 2012 n°10-25.822).
Subsequent case law confirms that this is but a narrow exception. In a 2018 ruling, the French supreme court held that the “international nature of the company’s business” could not in itself justify the lack of a French translation of the annual bonus targets to the employee of a French subsidiary (Cour de cassation, civile, Chambre sociale, 3 mai 2018, 16-13.736). It was however admitted that the translation in French could be supplied to the employees separately on an intranet, provided it was done soon enough (Cour de cassation, civile, Chambre sociale, 21 septembre 2017, 16-20.426).
Employers may be tempted by a pragmatic approach and consider that when their staff is fluent in English, they may be exempted from the somewhat burdensome requirement to translate their contracts, policies and plans in French. There again, the French supreme court ruled otherwise, quashing a court of appeal’s decision which had considered as a sufficient ground for an exception that the employee was using English on a daily basis to communicate with colleagues and to draft documents (Cour de cassation, civile, Chambre sociale, 7 juin 2023, 21-20.322).
In the October 2023 case, an employee of a French subsidiary of a US-based group had been denied payment of the entirety of his variable remuneration and sought compensation for the loss of the said remuneration and retirement indemnity. The Court of appeal ruled that dismissed that the mere fact that the bonus-related documentation was in English was not enough to make it unenforceable since the company that was a subsidiary of a foreign group. The decision was overturned – quite logically in the light of the above-mentioned case law.
While this latest decision is merely the application of a well-established case law regarding the use of English in the workplace, and most particularly regarding remuneration-related documents, it serves as a good reminder of the need to thoroughly assess, in a multinational environment, what must be translated in French. Employers who overlook this requirement may very well face the same – bitter – disappointment as French rugby fans currently do…
