The issue of night work is topical in France since changes in the labor market and the economy have led to a doubling of the number of employees working at night over the past two decades, concerning about 3.5 million workers, or one employee out of seven. The issue of night work has recently crystallized for certain brands like Monoprix, Carrefour City, Sephora …

The Law defines night work as “all work performed between 9 p.m. and 6 a.m.” (Article L. 3122-29 of the French Labour Code). Where required by specific circumstances, the labor inspector may authorize night work by an employee under certain conditions.

A night worker (Articles L. 3122-29 and following of the French Labor Code) is an employee who:

  • Either performs at least three hours of his/her daily working time during the period considered as night work at least twice a week, according to his usual work schedule;
  • Or generally performs 270 hours of night work during a period of 12 consecutive months.

1. Recourse to night work clarified by the Sephora case law

The exceptional nature of night work reaffirmed

By a widely publicized judgment of 24 September 2014, the Cour de Cassation (the French Supreme Court) reaffirmed, in accordance with current regulations, the exceptional nature of night work and, in doing so, essentially forced Sephora, sued by unions, to close its store on the Champs-Elysées at 9 p.m.

The Court recapitulated the terms of Article L. 3122-32 of the French Labour Code, i.e.:

  1. “the use of night work is exceptional;
  2. it takes into account the need to protect the health and safety of workers; and
  3. [must be] justified by the need to ensure continuity of economic activity or social utility.”

Ruling on the third criterion, the High Court rejected Sephora’s arguments as follows:

  • the nature of the industry: the perfumery business does not ipso facto involve night work. [The food trade has recently suffered the same fate (Cass crim, September 2, 2014, No. 13­83304, Carrefour City)];
  • the management of working time: according to the Court, it was not impossible to plan the working time schedule otherwise;
  • economic and organizational considerations submitted by Sephora: neither the commercial attractiveness of the Sephora store on the Champs-Elysees generating 20% of sales after 9 p.m. nor the need to deliver Sephora products at night could justify opening the store to customers after 9 p.m.

2. Will recourse to night work soon be relaxed by the French legislative developments?

Faced with a certain criticism reproaching the legislation and case law for restricting the country’s economic activity in times where mass unemployment is increasing, the French Government has alluded to a possible upcoming easing of restrictions on night work.

Announced by the former French Minister of the Economy last July and confirmed by the Prime Minister in his global policy speech on 16 September 2014, a bill relating to “growth and purchasing power” is in preparation and has already set as one of its objectives to “contribute to the attractiveness of France in the world with the opening of shops on Sundays and in the evenings in touristic areas,” thus revisiting the regulation of night work and Sunday closures.

To be continued …