Failure to respect working hours: what do you risk?

Is it an exceptional lack of punctuality?

Failure to respect working hours, if exceptional, must be tolerated by the employer. Whether due to a failure of the alarm clock, traffic or a transport strike, this delay is the result of unforeseen and unusual events.

The number of admissible delays depends on the importance of the position occupied by the employee and the inconvenience caused by his absence. But if the lack of punctuality becomes too frequent, is not justified, and harms the proper functioning of the company, a reframing or sanctions can be considered.

Note that even in the context of an excusable delay, the employee must notify his employer as soon as possible and justify his absence.

Have the hours been fixed with the employee?

Nothing can be reproached to the employee if his schedules have not been fixed precisely with him.

Employee information may result from mention in his employment contract (in case of individualized schedule), or a display in the company (in case of collective timetable). The employer then displays the hours at which work begins and ends as well as the hours and duration of rest (article L 3171-1 of the labor code).

Article D3171-2 also provides that the collective schedule must be posted in legible characters and affixed in a conspicuous manner in each of the workplaces to which it applies.

From there, because of the relationship of subordination that binds him to his employer, the employee has the obligation to provide a work service during the imposed hours.

How to prepare the sanction of an employee who is often late?

Before acting, the employer must characterize the failure of the employee who is often late. To sanction him, he must demonstrate a fault, then follow a disciplinary procedure. To prove the fault, a file retracing all the breaches of the employment contract must be set up.

The employer will observe in detail, over a given period (one or more months):

  • delays ;
  • departure times;
  • the meridian and daytime break times.

Indeed, it happens that latecomers are in fact people who balance their working time differently.

The employer will calculate the hours not worked in wages and charges.

He will then organize with his employee a crop interview on the basis of these facts, and will generally propose a reasonable period of time to resolve the situation.

It is only after reframing that the employer can initiate disciplinary proceedings which will result in a sanction.

What are the possible penalties for being late at work?

The employer will adapt its response to the seriousness of the employee’s breach, while respecting thescale of sanctions provided for in the company’s internal regulations, and the applicable disciplinary procedure.

Good to know : some collective agreements provide for a specific procedure in order to be able to impose a disciplinary sanction. It may be, for example, a passage before a commission to give an opinion in the case of a proposed disciplinary dismissal.

Failure to respect working hours can indeed constitute a slight fault, or a serious fault.. But delays tolerated by the employer cannot justify overnight dismissal for delay.

1. Withholding of wages

In the event of a delay, and if the latter is strictly assessed, it is possible tomake a proportional salary deduction : this is not a prohibited financial penalty. To avoid any dispute, the employee must be informed in advance in writing (recommended mail with acknowledgment of receipt should be preferred).

Good to know : to avoid these financial consequences, it is sometimes possible to organize a catch-up of working time, in consultation with the employer.

2. The call to order

In the event of exceptional delay, there is no need to immediately pronounce a disciplinary sanction.

The employer can give the employee a written reminder of their schedules, by asking him to take all the necessary measures to respect them because of the inconvenience caused by the delay (work overload of colleagues, disorganization of the service …).

3. The warning

In the event of regular delays, warning is an appropriate sanction.

The employer does not have the obligation to organize a preliminary interview, but it will obligatorily give a written notice to the employee notifying him of the warning and the reasons for the sanction.

This letter sent by registered post with acknowledgment of receipt will be written in a precise manner, indicating the dates and duration of each delay.

3. The formal notice

If the employer still notices delays at work after one or more warnings, he may impose a heavier sanction.

In that case, the employer will first send the employee a formal notice to respect his working hours by registered letter with acknowledgment of receipt or hand delivery against receipt.

5. Layoff

If the formal notice is not followed up, the employer can pronounce a layoff, that is to say a ban on the employee to go to the workplace.

Is it possible to pronounce a disciplinary dismissal for delay?

Finally, if the employee’s delays continue a disciplinary dismissal may be pronounced.

The employer must be able to demonstrate that the dismissal is a sanction proportionate to the faults committed by the employee by proving:

  • repeated delays, attested by means of an automatic control (time clock, etc.) or a manual count;
  • information correctly given to the employee on his schedules and the efforts made to make him aware of the respect of schedules (the employer then relies on the sanctions notified by mail: warning, reprimand, layoff);
  • the inconvenience caused to the company (non-opening of the store, blocking of a team, unsatisfied customers, etc.).

Examples of case law for respecting working hours

What are the delays considered to be at fault in the office?

To constitute a real and serious cause of dismissal, the employee’s delays must present a certain repetition and cause a disruption to the smooth running of the company.

Dismissal is justified when the employee has “a particularly faulty behavior by refusing to explain these work stoppages and by refraining from warning the employer of these absences at the time of the end-of-year celebrations putting the employee in difficulty. – here to organize his replacement, despite warnings already received for repeated delays ”(Cour de cassation, social chamber, October 25, 2007, n ° 06-42394).

Repeated delays and which have already been the subject of warnings (including one with layoff) are such as to justify the termination of the contract (Cour de cassation, social chamber, February 4, 1981, n ° 79-40813).

In a case judged on June 26, 2012, an employee refused to comply with the working hours and days defined in her employment contract, in particular by coming to work on Sundays and public holidays. She was dismissed for serious misconduct, because of this “gross insubordination”. His behavior was indeed such as “to bring into play the criminal liability of the employer for breach of the rule of weekly rest” (Cour de cassation, social chamber, June 26, 2012, n ° 11-13249).

A dismissal for serious misconduct is also incurred by the employee responsible for significant delays (of more than 30 minutes), repeated over a short period, when he was in charge of shift work and his absence disrupted his team (Cour de cassation , social chamber, January 15, 2014, n ° 12-24221).

What are the lack of punctuality at the office tolerated?

According to the Court of Cassation, the mere fact of arriving late for taking up a post once, does not constitute a real and serious cause of dismissal (Cour de cassation, social chamber, March 23, 2005, 03-41400).

A delay of a few minutes does not constitute serious misconduct even if the person concerned had already been the subject, eighteen months earlier, of a warning for delays (Court of Cassation, social chamber, March 2, 2010, no. ° 08-44.457).

Sometimes the delay is not related to negligence or insubordination. This will be the case when the event is close to a force majeure event.

Thereby, an absence or delay caused by a transport strike does not constitute a fault, if the employee is genuinely unable to respect his work schedule even while taking the necessary measures.

However, except for specific provisions of the collective agreement or the internal regulations, the employer is not required to pay for hours of absence. An agreement between employee and employer can nevertheless be found.

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