By a decision of April 30rst, 2009 n°07-40.527,
the French Supreme Court of appeal (Cour
de cassation) completes its case law about the principle “equal pay for
equal work” by broadening it to the traders’ bonus.
1) Facts and procedure
A trader qualified
as a “financial analyst” was given a variable bonus. This one was fixed discretionary
by the employer.
Contrary
to his colleagues, the trader has seen his bonus progressively reduced each
year, then totally suppressed by the employer, before being fired.
This
employee raised the case to the French Employment Tribunal (Conseil de prud’hommes)
by claiming discrimination.
The Court of appeal rejected his claim by
stating that the discretionary criterion of this bonus prevented the
application of the principle “equal pay
for equal work”, and that the employee did not bring the evidence to be
victim of discrimination.
Then the employee went to the Supreme Court of
appeal (Cour de cassation) which
received his claim favourably.
2)
Solution
First, the
Supreme Court of appeal reminds that it is to the
employer to establish that the wage difference between employees doing the same
work is justified by objective and discerning elements.
French judges apply the European
Community Law in the discrimination and equality of treatment matters.
The objectivity requirement
chases away the discretionary power and the discerning requirement refers to
the respect of the proportionality principle, dear to the European Community.
The evidence supported is
lightened for the employee who only has to bring some facts which presume the
difference of treatment. The employer would have so to establish that the wage
difference is justified.
Moreover, the Supreme Court of
appeal adds that the employer cannot put forward his discretionary power to
escape from his obligation to justify unequal measures (See the press release
from the Cour de cassation: www.courdecassation.fr).
As a conclusion, the Social
Chamber rightly decides that regarding to the principle “equal pay for equal work” the only fact that a bonus is leave to
the free assessment of the employer, does not justify a wage difference.
An employer cannot give bonus
and taking them back at will. He has to respect the principle “equal pay for equal work” or prove a
possible objective and discerning reason, which will be check by judges who
will assess it advantage by advantage.
Regarding to this case law, in
our opinion, employer cannot grant discretionary bonus anymore, each measure
taken would have to be justify regarding to the principle “equal pay for equal work”.
The advice to employers could
be to inform in advance the employees about the bonus attribution criterions,
by the means of memorandum or negotiation with trade unions. Transparency
reigns.
Frédéric CHHUM avocat à la Cour
Anissa YEFTENE
