E/C.12/77/D/206/2021

GE.25-03961 (E) 160425 170425

Committee on Economic, Social and Cultural Rights

Decision adopted by the Committee under the Optional

Protocol to the International Covenant on Economic,

Social and Cultural Rights, concerning communication

No. 206/2021*, **

Communication submitted by:

Stéphanie Faux (represented by counsel,

Frédéric Fabre)

Alleged victim:

The author

State party:

France

Date of communication:

20 April 2020 (initial submission)

Date of adoption of decision:

14 February 2025

Subject matter:

Compensation for hours worked, reasonable

limitation of working hours

Procedural issue:

Manifestly ill-founded

Substantive issue:

Work and employment

Article of the Covenant:

7 (a), (b) and (d)

Article of the Optional Protocol:

3 (2) (e)

1.

The author of the communication is Stéphanie Faux, a French national born on

25 December 1969. She claims that the State party has violated her rights under article 7 (a),

(b) and (d) of the Covenant. The Optional Protocol entered into force for the State party on

18 June 2015. The author is represented by counsel, Frédéric Fabre.

A.

Summary of the information and arguments submitted by the parties

Factual background

2.1

In 2009, the author was hired on a fixed-term contract as sales representative for north-

east France, with the status of technician under the collective agreement for paper and

cardboard processing and related industries. Her employment contract required her to work

215 days a year under a forfait-jour working time arrangement. On 13 January 2010, the

* Adopted by the Committee at its seventy-seventh session (10–28 February 2025).

** The following members of the Committee participated in the consideration of the present

communication: Aslan Abashidze, Lazhari Bouzid, Asraf Ally Caunhye, Laura-Maria Crăciunean-

Tatu, Charafat El Yedri Afailal, Peters Sunday Omologbe Emuze, Santiago Manuel Fiorio Vaesken,

Joo-Young Lee, Karla Vanessa Lemus De Vásquez, Seree Nonthasoot, Giuseppe Palmisano, Laura

Elisa Pérez, Julieta Rossi, Preeti Saran and Michael Windfuhr. Pursuant to rule 23 of the rules of

procedure under the Optional Protocol, Ludovic Hennebel did not take part in the examination of the

communication.

United Nations

E/C.12/77/D/206/2021

Economic and Social Council

Distr.: General

2 April 2025

English

Original: French

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author was appointed to the role of “national brands” sales representative. On 1 September

2012, her sales area was extended to include the Yonne Department.

2.2

On 6 August 2015, the author decided to terminate her employment contract.1 On

2 December 2016, the Labour Court of Reims ruled that she had been unfairly dismissed.

The Court ordered the former employer to pay her €23,599.22 in overtime, €23,000 in

damages for loss of employment, and other compensation. The Court dismissed the author’s

claim for damages for wage discrimination, finding that she had not provided any evidence

that she had been the victim of wage discrimination. According to the author, the Labour

Court protected her rights under article 7 of the Covenant by holding that her former

employer had not granted her sufficient autonomy to organize her work in accordance with

the forfait-jour arrangement and had failed in its duty of care with regard to the protection of

her health, given that she experienced burn-out and work-related stress.

2.3

On 24 January 2018, the Reims Court of Appeal overturned this judgment, ruling that

the author’s termination of her employment contract was tantamount to resignation. The

Court of Appeal dismissed the author’s claim for damages for unfair dismissal but upheld

some of the compensation measures, including the overtime pay. The Court of Appeal

dismissed the claim of a breach of the principle of equal pay for equal work, noting that the

company had established two levels of remuneration within its sales team based on objective

criteria, namely, seniority within the company and the achievement of sales targets. The

Court noted that the author was the company’s highest paid sales representative with the

exception of an employee who lived in the Paris region, on account of the high cost of living

there, and this despite her having fewer sales outlets than her colleagues. The Court

concluded from the documents submitted to the proceedings that there had been no

deterioration in the author’s working conditions nor any increase in her workload. On

2 October 2019, the Court of Cassation dismissed an appeal lodged by the author.

Complaint

3.1

The author complains of not having enjoyed just and favourable conditions of work.

She claims that her former employer had established, without justification, two groups within

its sales teams, one of which enjoyed higher salaries than the other. According to the author,

the courts failed to protect her. Under French law, it is up to the employee to provide proof

of alleged wage discrimination. However, while the author has “legitimate suspicions” of

wage discrimination, she has no means of finding out the other salaries paid by the company,

and the Reims Labour Court and Court of Appeal do not have the power to require the former

employer to produce the payslips of her 12 colleagues. The Court of Appeal noted that the

employer had stated that the team consisted of 13 people, whereas it had presented a table

showing the remuneration of only seven employees, including the author. Since the Labour

Court did not have the power to request the missing payslips, it was obliged to rule that the

author’s allegation was unfounded. In her view, in a democratic society, it is necessary that

employees have the means to check whether they are enjoying just and favourable conditions

of work so that they can make informed decisions, including with regard to the termination

of an employment contract. The author asserts that the absence of such means vitiates the

quality of the law in respect of article 7 of the Covenant and renders the reasoning of the

Reims Court of Appeal unfair and inadequate, and therefore arbitrary. Moreover, the Court

of Cassation conducted only a light review of the Court of Appeal judgment, did not review

whether the appeal judgment was justified on the merits and did not rule that there had been

no wage discrimination. The author was therefore unable to obtain protection from the Court

of Cassation.

3.2

The author asserts that the judgment of the Reims Court of Appeal of 24 January 2018

was contradictory, since it found that her former employer had not complied with its

obligation to monitor her workload, while also indicating that there had been no apparent

increase in her workload and no deterioration in her working conditions. The author notes

1 A decision by an employee to terminate the employment contract will produce the effects of unfair

dismissal if the employee can prove that the employer committed breaches of such gravity as to

prevent the employment relationship from continuing; otherwise, the decision will be considered a

resignation.

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the Court of Appeal’s observation that, on 14 April 2015, her employer had reminded her

that the number of stores in her sales area had been reduced significantly, having gone from

265 to 203 following the arrival of a sixteenth salesperson. The author notes that the sales

team was actually made up of 13 salespeople. The Court of Appeal nevertheless concluded

that the employer had fulfilled its duty of care with regard to the protection of the health of

its employees.

3.3

The author alleges that the Reims Court of Appeal was inconsistent in that it failed to

consider the long distances she had to travel to visit her customers. From 2012 onwards, she

was responsible for eight French departments, including that of Yonne, despite living in

Reims. The Court of Appeal took no account of the author’s statement that she could not

continue to cover an area of that size, and the fact that she had requested in 2015 to reduce

her sales area to five departments did not change the Court’s analysis that she was the

employee in charge of the fewest sales outlets and that there had been no increase in her

workload or deterioration in her working conditions. However, travelling from her home to

the Yonne Department, visiting at least six sales outlets per day and passing by the company’s

head office in Nancy, as her former employer had required, before returning home, involved

her covering about 900 kilometres over two days. From this point of view, the Labour Court

considered that the former employer could not legitimately claim that she enjoyed autonomy

to organize her work. The author notes that the deterioration in her health and the causal link

with her workload have been confirmed by a doctor from the State health insurance fund, the

labour inspectorate and an occupational physician, who recommended a modified

workstation. According to the author, the Court of Appeal, being unable to challenge a

decision by the labour inspectorate, chose not to respond to her claims regarding her health.

She concludes that the reasoning of the Reims Court of Appeal is inadequate and arbitrary

and asserts that the failure to protect her health constitutes a violation of her right to life. The

author reiterates that the Court of Cassation undertook only a light review of the Court of

Appeal judgment in which it took no account of, and therefore failed to correct, the Court of

Appeal’s arbitrary reasoning on the merits.

State party’s observations on admissibility and the merits

4.1

In its observations submitted on 16 December 2021, the State party argues that the

communication is inadmissible because it is manifestly ill-founded, in accordance with

article 3 (2) (e) of the Optional Protocol. According to the State party, the author merely

expresses her disagreement with the decisions of the domestic courts and calls into question

their assessment of the gravity of the breaches she ascribes to her former employer. The State

party notes that, according to the Committee’s jurisprudence, the Committee’s role is only to

decide whether the assessment of evidence or the interpretation of the national law applied

were manifestly arbitrary or equivalent to a denial of justice that violated a right enshrined in

the Covenant.2 The State party asserts that the application of national law by the domestic

courts was neither arbitrary nor equivalent to a denial of justice. The mere fact that the Court

of Cassation dismissed the appeal does not constitute arbitrariness or a denial of justice.3

4.2

In the alternative, the State party maintains that the author’s rights under the Covenant

have not been violated. The State party points out that, according to the 1986 report of experts

on the International Labour Organization Equal Remuneration Convention, 1951 (No. 100)

and the general observations of the International Labour Conference, the principle of equal

pay for equal work cannot entail a system of automaticity, since the criteria used to identify

a position are so numerous and diverse. Article L.2271-1 of the Labour Code enshrines the

principle of equal pay for equal work. Work of equal value is understood as that which

requires a comparable combination of professional knowledge, established by a qualification,

certificate or professional practice; skills acquired through experience; responsibilities; and

physical or mental strain (Labour Code, art. L.3221-4). As the law of the State party provides

for the sharing of the burden of proof, it is initially up to the employee to provide evidence

of different treatment. Contrary to the author’s claims, the courts are perfectly entitled to

2 Arellano Medina v. Ecuador (E/C.12/63/D/7/2015), par. 8.10; and Martínez Fernández v. Spain

(E/C.12/64/D/19/2016), para. 6.4.

3 J.P.D. v. France (CCPR/C/115/D/2621/2015), para. 4.5.

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order such investigative measures as they deem useful, in accordance with article 145 of the

Code of Civil Procedure. If an employee maintains that the evidence is in the hands of another

party, it is up to him to request the judge to order its production. It is exclusively for the trial

courts to assess the facts and the probative value of evidence; the Court of Cassation verifies

that the trial courts have complied with the probative mechanism laid down by law. Domestic

law therefore fully protects employees against unequal treatment in terms of pay.

4.3

The State party submits that, in the present case, the author’s former employer has

demonstrated that the disparity in the salaries she and her colleagues received was based on

seniority in the company and a sales target. Of the team of 13 sales representatives, 3 were

paid a gross monthly salary of €1,840, while 9, including the author, were paid €1,890. Only

one employee was paid more than the author, by less than €50 gross, on account of his

residing in Paris. The Reims Court of Appeal noted, from a table drawn up in July 2013

detailing the remuneration of seven employees, including the author, that her employment

contract provided for an annual variable bonus, calculated pro rata to time worked and on the

basis of targets and criteria set by management. The author received the highest overall

remuneration of the employees shown in the table. The Court of Appeal thus found no breach

of the principle of equal pay for equal work.

4.4

Regarding the termination of the employment contract, the Reims Court of Appeal

conducted a light review of the matter of whether the former employer committed a breach

of such gravity as to prevent its continuation. The State party argues that this review complied

with the requirements of article 7 of the Covenant and asserts that a superficial review by a

higher court does not infringe the fundamental rights of the litigant, provided that the merits

have been dealt with in the previous proceedings.4 The State party asserts that the author has

not provided any evidence that would call into question the reasoning of the domestic courts.

The domestic courts did not assess the evidence or apply national law in a manifestly arbitrary

manner and did not commit a denial of justice. Moreover, the author did not maintain her

claim for damages for discrimination before the Court of Appeal. Consequently, the State

party requests the Committee to dismiss the claim under article 7 (a) of the Covenant for lack

of substantiation.

4.5

Regarding the author’s claim concerning the protection of her health and her rest

periods, the State party summarizes its legislation guaranteeing the right to health and rest of

employees subject to forfait-jour working time arrangements. In the present case, the State

party points out that the Reims Court of Appeal held that the working time arrangement was

null and void because it had neither ensured reasonable working hours and daily and weekly

rest periods nor allowed the employer to remedy in good time a workload that might have

been incompatible with reasonable working hours. The Court of Appeal upheld the author’s

claims in this regard and ordered the employer to pay her €23,599 in back pay for overtime,

plus €2,360 for the associated paid leave.

4.6

The State party refutes the author’s argument that a combination of the misuse of the

forfait-jour working time arrangement and the violation of the principle of equal pay for

equal work led to a deterioration in her working conditions due to a massive increase in her

workload, which had harmful consequences for her mental health. Firstly, the State party

reiterates that the claim of a violation of the principle of equal pay for equal work must be

dismissed. Secondly, the domestic courts having declared the working time arrangement null

and void, the author received compensation for the overtime worked. Finally, the Court of

Appeal found that the author’s workload had not increased, and in fact had decreased, since

the number of stores in her sales area had gone from 265 to 203 in 2014 following the arrival

of a new salesperson. Furthermore, the Reims Court of Appeal stated that the author’s

overtime record showed systematic compliance with daily and weekly rest periods, with no

evidence of a deterioration in her working conditions or a massive increase in her workload

likely to have harmful consequences for her mental health. The Court of Cassation, which

confined itself to verifying that the trial courts had ascertained whether the deterioration in

the author’s health was the result of the employer’s alleged non-compliance with its duty of

care, was thus legitimately able to dismiss the author’s appeal. The author does not provide

any other evidence that would call into question the reasoning of the domestic courts, which

4 P.E. v. France (CAT/C/29/D/193/2001), para. 6.4.

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did not assess the evidence or apply national law in a manifestly arbitrary manner and did not

commit a denial of justice. This claim is therefore manifestly ill-founded.

Author’s comments on the State party’s observations

5.1

In her comments of 23 May 2022, the author states that her communication concerns

the inadequacy of the law in matters of wage discrimination between men and women, as the

courts cannot require employers to disclose all salaries, and the lack of protection of her rights

to health and to rest periods in violation of article 7 of the Covenant. The author claims that

the reasoning of the domestic courts was inconsistent, and on that ground submits that her

communication is not manifestly ill-founded.

5.2

The author disputes that article 145 of the Code of Civil Procedure is applicable. She

claims that she had sufficient evidence to bring legal proceedings against her former

employer without going through the procedure established under that article, and that it was

therefore up to the employer to provide evidence to disprove her claims. Moreover, the

aforementioned article is a mechanism for obtaining evidence prior to trial; it cannot be used

during a trial to correct a procedural error linked to the adversarial proceedings. The author

asserts that domestic law does not require the judge to obtain all evidence from the employer.

Without being protected as a woman, she found herself faced with the discretional power of

the Court of Appeal, which gave precedence to the employer’s economic interests. The author

considers that this amounted to a denial of justice.

5.3

The author claims that it is “shocking and absurd” for the State party to “defend” her

former employer. According to the author, the State party’s actions confirm her legitimate

suspicion that her ex-employer benefited from the protection of the domestic courts, through

executive pressure on the judges, presumably via the Minister of Justice or the President of

the Reims Court of Appeal.5 With regard to the State party’s observation that she received a

higher salary than all of her colleagues, the author wonders whether the company

discriminated against men by paying women higher salaries, and concludes that “not even

the ex-employer’s lawyers ventured such a far-fetched argument”. She reiterates that she was

not protected by the Court of Appeal, which passed judgment without having at its disposal

the information regarding six employees that had been withheld by her former employer.

5.4

The author reiterates that the labour inspectorate intervened with her former employer

with a view to preserving her health and rest periods. She argues that while the Court of

Appeal declared the forfait-jour arrangement to be null and void, she did not benefit from

positive consequences in terms of her rest periods or the protection of her health. On the

contrary, as the Court of Appeal rejected her other claims, based on contradictory and

inconsistent reasoning, she remained a victim. According to the author, the State party’s

arguments do not account for the fact that she was achieving her sales targets despite having

fewer stores in her sales area, or for the travel time her work involved, the fatigue she

experienced or the care she was required to exercise when driving. The author had to cover

400 kilometres a day, which the domestic courts and the State party have failed to consider.

B.

Committee’s consideration of admissibility

6.1

Prior to considering any claim contained in a communication, the Committee must

decide, in accordance with rule 10 (2) of its rules of procedure under the Optional Protocol,6

whether or not the communication is admissible.

6.2

The Committee takes note of the State party’s argument that the communication is

inadmissible because it is manifestly ill-founded under article 3 (2) (e) of the Optional

Protocol on the grounds that the author’s claims do not demonstrate that the decisions of the

national authorities were manifestly arbitrary or equivalent to a denial of justice that violated

a right enshrined in the Covenant. In this regard, the Committee recalls its jurisprudence that

its task in considering a communication is confined to assessing whether the facts as

described in the communication, including with regard to the application of national law,

5 The author refers to the 2018 and 2019 activity reports of the Supreme Council of Justice.

6 E/C.12/5.

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reveal a violation by the State party of the economic, social and cultural rights set forth in the

Covenant, and that it is in the first place for the courts of States parties to evaluate the facts

and evidence in each particular case and to interpret and apply the relevant law. 7 The

Committee’s role, then, is solely to determine whether the assessment of evidence or the

application of national law was manifestly arbitrary or amounted to a denial of justice that

violated a right enshrined in the Covenant.8

6.3

In the present case, the Committee notes that the dispute between the parties concerns

the assessment by the domestic authorities of the author’s salary and working conditions.

6.4

The Committee notes the author’s claims that the domestic courts did not protect her

from wage discrimination by her former employer and that under domestic law the courts

can neither provide her with protection from wage discrimination between men and women

nor order the production of evidence of such discrimination. However, the Committee also

notes that the author has not disputed the State party’s observation that she received the

highest salary among the company’s employees, with the exception of one employee who

earned a slightly higher wage because he lived in a region with a higher cost of living. Nor

did she dispute the State party’s observation that the wage disparity was based on seniority

in the company and a sales target. The Committee further notes that the author has not

explained why she alleges discrimination in her communication but did not maintain her

claim for damages for discrimination before the Court of Appeal. In the circumstances of the

present case, the Committee concludes that the author’s allegations regarding wage

discrimination, the power of the courts to order the production of the documents she believed

were missing, and the degree of oversight exercised by the Court of Cassation do not

sufficiently substantiate the claim of a violation of her rights under article 7 of the Covenant.

The Committee notes that the author has not provided any evidence to suggest that she did

not receive equal remuneration.

6.5

The Committee notes the author’s arguments concerning alleged inconsistencies in

the judgment of the Reims Court of Appeal and the Court’s failure to respond to claims

regarding her health, including the distances she had to travel and the reports relating to her

burn-out. The Committee also notes, however, that the Reims Court of Appeal observed that

the author had left unanswered a remark by her employer to the effect that she had been

reminded on 16 February 2012 that she was the employee in charge of the fewest sales outlets,

albeit without specifying the number of outlets added to her sales area by the incorporation

of the Yonne Department; that her sales area had been considerably reduced in 2014; that the

time record she had produced showed systematic compliance with daily and weekly rest

periods; and that these facts did not reveal any deterioration in her working conditions or a

massive increase in her workload likely to have harmful consequences for her mental health.

In view of the foregoing, the Committee considers that, while the author disputes the

conclusions of the Court of Appeal, her arguments do not demonstrate either a manifestly

arbitrary assessment of the evidence or interpretation or application of domestic law, or a

denial of justice violating a right enshrined in the Covenant.

6.6

The Committee further notes that the author has not provided sufficient evidence to

demonstrate that she did not receive fair wages and equal remuneration for work of equal

value under the terms of article 7 (a) of the Covenant, or that there was gender discrimination

that violated her right to equal pay. Consequently, the Committee concludes that the author

has not sufficiently substantiated her claims and that the communication is inadmissible

under article 3 (2) (e) of the Optional Protocol.

7 I.D.G. v. Spain (E/C.12/55/D/2/2014), para. 13.1; López Rodríguez v. Spain (E/C.12/57/D/1/2013),

para. 12; Arellano Medina v. Ecuador (E/C.12/63/D/7/2015), par. 8.10; and Martínez Fernández v.

Spain (E/C.12/64/D/19/2016), para. 6.4.

8 Ibid.

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C.

Conclusion

7.

The Committee therefore decides:

(a)

That the communication is inadmissible under article 3 (2) (e) of the Optional

Protocol;

(b)

That the present decision shall be transmitted to the State party and to the

author.