France: Differences in treatment between employees set out in a collective agreement are no longer presumed justified

The French Supreme Court (Cour de cassation) has halted the development of its case-law relating to the presumption of justification of differences in treatment, put in place by collective agreement. Originally set up in favour of the conventional advantages linked to membership in a particular professional category, this presumption has been extended to other types of differences in treatment created by the social partners (between employees exercising, within a same professional category, different functions, between employees belonging to the same company, but to separate establishments).

However, for the Court of Cassation, in the areas in which Union law is implemented, this presumption runs up against the rules governing evidence, specific to European Union law. It is contrary to these rules in that it places, solely on the employee, the burden of proof of the infringement of the principle of equality.

The Court of Cassation now considers that it will be up to the employer to justify objective reasons for legitimising differences in treatment.