OD FLASH | Change in the distribution of working time and refusal by the employee justified by a compelling family obligation

Cass. soc., 29 mai 2024, n°22-21.814

In this decision, the Court of Cassation ruled that an employee could validly refuse to change his working hours because of the disability of his child, which constituted a compelling family obligation.

Facts. In this case, an employee worked night shifts as a security guard for a company.

On three occasions, the employee refused to be assigned to a day shift, citing a decision by the departmental organisation for the disabled recognising that he had to take over at least 20% of the activities of his child, who is 80% disabled, by adjusting his working hours.

For these three refusals, the employer dismissed him for gross misconduct.

Proceedings. The employee appealed his dismissal to the Labour Court.

The Court of Appeal granted the employee’s application. The judges ruled that the dismissal was not for a genuine and serious reason because (i) the employee’s refusal was justified on the grounds of respect for his personal and family life in the light of the decision of the departmental centre for the disabled, and (ii) the employer had not proved that he did not have a night shift.

The employer then appealed to the French Supreme Court. It argued that the collective agreement for prevention and security companies, which applied to the employee, provided that employees in the sector worked either day or night shifts, or alternately night and day shifts, and that the employee’s personal constraints could not be positively enforced against him.

Solution. The Court of Cassation rejected the appeal.

The Court recalled that, despite the provisions of the collective agreement, the employer may not impose a change in working hours if the employee proves that such a change would excessively interfere with the right to respect for personal and family life (Cass. soc., 3 November 2011, no. 10-14.702).

In this case, the Court of Cassation considered that the disability of the employee’s child constituted an overriding family obligation. In fact, the employee was entitled to refuse the change from night to day working hours, which would have excessively interfered with his right to respect for his personal and family life and was incompatible with his compelling family obligations.

Accordingly, the employee’s refusal, based on the preservation of his family life, could not justify his dismissal for serious misconduct.