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The constructive dismissal may be justified by the non-payment of overtime, provided the employee officially requests payment on time.

The French Supreme Court requires that the constructive dismissal be based on a “sufficiently serious breach by the employer preventing the continuation of the employment contract” (French Supreme court, 26 March 2014, n°12-23.634). The French Supreme Court concludes therefrom that the breaches on which the employee bases his claim must be recent, failing which they have not made it impossible to continue contractual relations.

In this case, an employee had worked for unpaid overtime between 2008 and 2013 but had not requested payment thereof until June 2013.

The French Supreme Court considered that the non-payment of overtime did not justify the constructive dismissal since this situation was too old, the employee having waited 5 years to officially request a salary regularization. The employer was however still sentenced to pay the corresponding overtime as well as damages for failure to inform and grant compensatory rest to the employee.

The French Supreme Court thus continues to restrict to the most serious cases the possibility to take constructive dismissals.

French Supreme Court, 14 november 2018, n°17-18890