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Sunday work consideration: the position of the French Supreme Court on the beneficiaries of specific consideration for exceptional work on Sundays

9 mars 2021

In a decision dated 17 February 2021, the French Supreme Court upheld its position on the specific consideration for exceptional work on Sundays.

In this case, an employee of a well-known furniture retail company, who had been working on Sundays on a regular basis (3 Sundays a month), accused his employer of depriving him of the compensatory rest provided for Sunday workers by the applicable collective agreement. His claim was based in particular on Article 33 of the collective agreement on furniture trading, which provides that, for all exceptional work on Sundays (as permitted exemptions from the legal prohibition of Sunday work), the hours worked must be paid on the basis of normal hours increased by 100% and give right to a rest equivalent to the hours worked on Sundays.

 

In this case, the employer company had secured from the local State representative (“Préfet”) an authorization to have employees work on Sundays as from October 29, 2007. On January 5, 2008, the employer had then benefited from the new legal provisions (now article L. 3132-12 of the French Labor Code) authorizing furniture retail stores to open on Sundays. The French Supreme Court considered that before those dates the employer company had no right to open on Sundays, meaning that. For the period between April 7, 2003 and October 29, 2007, the claimant had worked on Sundays illegally.

As a result, the French Supreme Court held that:

–    the consideration granted by law or the applicable collective agreement to employees working on Sundays were not applicable to employees working illegally on Sundays, as the claimant in that case had done from 2003 to 2007. The Supreme Court added that, in such a case, the employee could only seek damages for the harm suffered as a result of illegal work on Sundays;

 

–    for the period when the employee had worked on Sundays in a lawful setting, he was not entitled to the specific consideration granted by the applicable collective agreements to employees working on Sunday on an exceptional basis, since he himself was working on Sundays on a regular basis.

This decision confirms the French Supreme Court’s standing position on the matter (French Supreme Court, February 26, 2003 n°01-43.906 ; French Supreme Court, January 31, 2006 n°04-40.985).

French Supreme Court, February 17, 2021, n°19-21.897

https://www.courdecassation.fr/jurisprudence_2/arrets_publies_2986/chambre_sociale_3168/2021_9997/fevrier_10023/248_17_46529.html