D1d6 - What types of clauses have been declared void by statute or by case law?

Article L. 121-3 of the Labour Code provides that the parties to an employment contract are authorised to derogate from the public policy provisions of an employment contract in a manner that is more favourable to the employee.

Any clause designed to restrict the rights of the employee or make his obligations more severe is void and of no effect.

By virtue of that principle, the labour courts have decided that it is appropriate to declare certain clauses void.

Thus, the following clauses, in so far as they result in a restriction of the employee’s rights, have been declared void:

• clauses preventing an employee from resigning;
• clauses enabling the employer to make unilateral changes to the employment contract.

Similarly, the following clauses, in so far as they result in aggravation of the employee’s obligations, have been declared void:

• liability clauses imposing on an employee greater civil liability than that provided for in Article L. 121-9 of the Labour Code. In fact, by virtue of that Article, the employee has no liability under labour law and is not responsible for damage caused, except in the case of wilful acts or serious negligence, or wilful misconduct equivalent to fraud.

Furthermore, the Labour Code also prohibits certain clauses as being contrary to the principle of equal treatment:

• non-marriage clauses (any clause which provides for termination of the employment contract of the husband or of the wife by reason of their marriage);
• clauses which impose criminal liability, for example a clause which provides that an employee must compensate an employer who has been ordered to pay a fine by reason of overloading a lorry.

As regards clauses in the employment contract, in a collective agreement or in internal regulations, which define the grounds for breach of the employment contract, even though they are not void, they are nevertheless not binding on a court.

In fact, it is incumbent upon the courts to assess the gravity of the wrongdoing committed and an employment contract or a collective work agreement is not the appropriate place to classify on its own initiative a particular course of conduct by the employee as serious misconduct.