The action is being brought by sole practitioner and member of the Syndicat des Avocats de France (SAF) Avi Bitton on behalf of a former Herbert Smith associate who was dismissed earlier this year.
The associate was hired in 2006 under a self-employment contract, but claims that since she was required to devote more than 10 hours a day to working for Herbert Smith, with no time to develop personal clients, she was effectively an employee.
Summons have been issued to both the firm’s Paris office and its local corporate head Jacques Buhart, but have not yet been presented by a bailiff to the firm’s director Jean-Didier Billard. This must happen before proceedings can begin.
In France, self-employment contracts among associates are common. Bitton, who claims that such arrangements allow firms to avoid paying social contributions, is hoping to stimulate a discussion on changing this because he believes that the reality in large international firms is that high billing targets leave associates little time to work for themselves.
“In the UK associates have an employment contract and when they’re dismissed have the benefit of social insurances,” he said. “But in Paris, about 95 per cent of associates are recruited as self employed, then the firm’s supposed to allow them to develop their own clients.
“If that’s not the case then a judge may consider that the associates are, in reality, under employment contract, and so can claim substantial damages. But there are also criminal aspects because since the employers haven’t declared the employee’s status then they don’t pay social charges, which is illegal employment,” he claimed.
Actions against firms by former associates disputing their employment status are not unusual in France, according to Bitton, but are usually settled amicably before reaching court.
Baker & McKenzie is appealing a recent ruling from the chairman of the Paris Bar that found in favour of a dismissed associate in similar circumstances.
On 17 February this year, the SAF wrote to all law firms against which actions may be brought to notify them of the union’s intention to help self-employed associates in France.
President of the SAF, lawyer Jean-Louis Borie, said: “We have to get over this disguised employment. The legal status of associates has to be a real status and at the same time a complementary training, a sort of companionship.”
Herbert Smith declined to comment.