Decision adopted by the Committee under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, concerning communication No. 206/20211*, 2**
- *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, JooYoung 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. ↩
Date of adoption of decision: 14 February 2025
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 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.3 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.
- 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. ↩
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 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.4 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.5
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 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.6 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.
- P.E. v. France (CAT/C/29/D/193/2001), para. 6.4. ↩
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 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.7 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.
- The author refers to the 2018 and 2019 activity reports of the Supreme Council of Justice. ↩
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
6.2 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, 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.9 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.10
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.
C. Conclusion
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.