In a decision of June 7th, 2023 (n°21-20.322), the social chamber of the Court of Cassation recalls that the objectives necessary for determining the contractual variable remuneration of employees must imperatively be written in French if they are not received from abroad or intended for foreigners, even if the working language of the company is English.
1) Facts and procedure
An employee was hired as sales manager by Vital images France on March 1, 2008.
He was fired on May 26, 2016.
On June 22, 2016, he seized the labor court of claims relating to the execution and termination of his employment contract, in particular a request for reimbursement of an amount deducted from his salary as compensation for commissions, claiming that the commission plan drafted in English was not binding on him.
The Toulouse Court of Appeal, in a judgment of May 28, 2021, ruled that the compensation plan written in English was enforceable against the employee and therefore rejected his request for reimbursement.
The employee then lodged an appeal in cassation.
2) Means
The employee complains that the judgment rejects his request for reimbursement of a certain sum deducted from his payslip as compensation for commissions in addition to the related paid leave, whereas:
- That under the terms of Article L. 1321-6 of the Labor Code, any document containing obligations for the employee or provisions whose knowledge is necessary for the performance of his work must be written in French, this rule not being applicable to documents received from abroad or intended for foreigners;
- That in this case the Court of Appeal did not inquire whether the documents had been received from abroad.
3) Workaround
The social chamber agrees with the employee and breaks and cancels the appeal decision.
It begins by recalling the content of Article L. 1321-6 of the Labor Code:
“Any document containing obligations for the employee or provisions whose knowledge is necessary for the performance of his work must be written in French. This rule does not apply to documents received from abroad or intended for foreigners”.
In this case, the Toulouse Court of Appeal "holds that the commissioning plan drafted in English is opposable to it because it is common ground that the company's working language is English, the exchanges of emails produced between the parts being, for the most part, in English, including the working documents drawn up by the employee”.
The Court of Cassation then rules that:
"In ruling thus, while it had noted that the document setting the objectives necessary for determining the contractual variable remuneration was not written in French, the Court of Appeal, which did not find that it had been received from abroad, has violated the aforementioned text".
4) Analysis
This solution is not new and is part of the previous case law of the social chamber of the Court of Cassation which had already ruled in this direction and considered that it was of little importance that the company had an international activity (Cass. Soc ., May 3, 2018, No. 16.13-736), or that the employee is bilingual (Cass. Soc., June 29, 2011, No. 09-67.492).
Thus, it does not matter that the working language of the company is English and that the employee understands English perfectly, his objectives must be written in French.
The exception provided for in Article L. 1321-6 of the Labor Code (document received from abroad or intended for a foreigner) is therefore restrictive.
Judges cannot retain another exception to the rule that the objectives imposed on employees must be written in French.
Sources
Cass. Soc., 7 juin 2023, n° 21-20.322
Salariés, cadres, cadres dirigeants : objectifs rédigés en anglais = inopposabilité au salarié
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Mathilde Fruton Létard élève avocate EFB Paris
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