Cass. Soc., 5 February 2025, no. 22-24.000
An employee of an absorbing company who considered himself to be the victim of unequal treatment and was transferred to the former site of the absorbed company sought entitlement to the mileage allowance granted to former employees of the absorbed company whose starting and finishing times did not allow them to use public transport.
A substitution agreement concluded by the representative trade union organisations of the absorbing company provided for this benefit to be maintained for employees of the absorbed company who benefited from it on the effective date of this agreement or who had benefited from it previously.
The Court of Appeal upheld his claim on the grounds that the difference in treatment was unrelated to any professional consideration since it concerned the cost of commuting to and from work, which was excluded from the scope of actual working time, and that the cost of the allowance varied according to the place of residence freely chosen by the employee.
The Court of Cassation overturned the appeal ruling, pointing out that differences in treatment resulting from a substitution agreement concluded in the context of a merger are presumed to be justified, and it is therefore up to the party challenging them to show that they are unrelated to any consideration of a professional nature.
In this respect, it disagreed with the Court of Appeal and considered that the difference was justified since it concerned the maintenance of a benefit relating to the compensation of transport costs between home and the workplace, so that it was not unrelated to any consideration of a professional nature.