NewsletterNewsletter No. 165 – September 2022

COVID-19: Ad hoc consultation on a reorganization project is not subject to prior compliance by the employer with the obligation to consult the CSE on the company’s strategic guidelines.

As a reminder, the CSE is consulted on questions concerning the organization, management and general operation of the company (C. trav., art. L.2312-8 and L.2312-37), but also about the company’s strategic guidelines (C. trav., art. L.2312-24). In this case, a school management body had informed the CSE of the plan to close a high school. This ad hoc consultation took place before the consultation meetings of the same CSE on the strategic guidelines. The CSE turned to the judicial court regarding the articulation between these two consultations, in order for their organization to be ruled irregular. The Court of Appeal considered that the closure of this establishment constituted a strategic guideline which should itself be subject to prior information and consultation of the CSE. Consequently, the ad hoc consultation initiated by the employer had to be suspended until the end of the CSE’s annual consultation on the strategic guidelines. In this decision, the French Supreme Court (Cour de cassation) settles the question raised in doctrine of the articulation of the recurring consultation on the company’s strategic guidelines with the ad hoc consultations. It rules that “the ad hoc consultation on the modification of the company’s economic or legal organization or in the event of restructuring and reduction of the workforce is not subject to the prior compliance by the employer with the obligation to consult the social and economic committee on the company’s strategic guidelines» (Cass. Soc., 21 September 2022, No. 20-23.660).

CENTRAL CSE: An agenda may be modified at the beginning of a meeting unanimously by the present members.

In this case, a central works council (CCE) voted through a decision giving its secretary the power to take legal action for legal interference, even though voting through such a decision was not included in the agenda sent eight days prior, and neither was it related to the issues to be discussed during the meeting. The criminal division of the Cour de cassation ruled that a decision authorizing the CCE to take legal action for legal interference is regular, even if this point was not initially on the agenda, as long as it was added at the start of the meeting unanimously by the present members. In this specific case, the action is admissible, regardless of the non-compliance with the period for communication of the agenda of eight days provided for at Article L. 2327-14 of the Labor Code, in its then applicable wording (Cass. Crim., 13 Sept. 2022, No. 21-83.914). To justify its decision, the Cour de cassation indicates that the 8-day minimum period for communication of the agenda of the CCE is decreed in the interest of its members. Consequently, this period may be ruled out if the modification of the agenda has been adopted unanimously by the present members. This solution can be transposed to the central CSE since the new Article L. 2316-17 of the Labor Code identically reproduces the terms of the former Article L. 2327-14 from the same Code. This solution seems just as transposable to the establishment CSE, since the reasoning followed by the Court is also applicable to this instance. However, confirmation is still awaited on this last point.

EQUAL TREATMENT: Holding a degree does not always make it possible to legitimize unequal treatment between employees occupying the same position.

In this case, an employee hired by La Poste was dismissed. In the context of a dispute relating to the termination of her employment contract, she contested her classification. The plaintiff put forward an infringement to the principle of equal treatment resulting from the fact that she was classified I-2 while her colleague in the same position benefited from the higher classification I-3. The employer claimed that this differentiation was justified inasmuch as this colleague was the only employee who, in this position, held a degree. In its decision of 14 September 2022, the Cour de cassation states as a reminder, on the basis of the principle of equal treatment, that “the only difference in degrees does not make it possible to establish a difference in treatment between employees who perform the same duties“. Nevertheless, it also states as a reminder that such a differentiation in treatment may be legitimized “if it is demonstrated by justifications, the reality and relevance of which it is up to the judge to check, that holding a specific degree attests to particular knowledge useful for the exercise of the occupied position”.

In this particular case, the Cour de cassation rules against the company, on the grounds that the employer “did not provide proof of the degree of the employee to whom she compared herself” and that the Court of Appeal “did not find that this degree attested to particular knowledge useful for the exercise of the occupied position” (Cass. Soc., 14 Sept. 2022, No. 21-12.175).

UNION ACTION: A trade union may claim the suspension of the internal regulations for failure to consult the social and economic committee.

As a reminder, the introduction, modification and withdrawal of clauses from the internal regulations must comply with certain formalities, including the prior obligation to submit it to the opinion of the social and economic committee (CSE) (C. trav., art. L. 1321-4). In this case, a union had summonsed a company that had modified its internal regulations to request that they be annulled. The union put forward the lack of consultation of the CHSCTs^[1] and of the establishment committees as part of the procedure for modifying the internal regulations. In a decision of 21 September 2022, the Cour de cassation indicates, in an unprecedented manner, that “a union is admissible to request in emergency interim proceedings that the internal regulations of a company be suspended due to the failure of the employer to fulfill the substantial formalities relating to the consultation of the staff representative bodies, in the absence of which the internal regulations cannot be introduced”. The Cour de cassation justifies its solution by the fact that failure to comply with these formalities is detrimental to the collective interest of the profession, represented by the union. However, in this same decision, the Cour de cassation places an important limit on the union’s right to act. It considers that a union is not admissible to request, on the merits of the case, the nullity of the whole of the internal regulations or their unenforceability against all the employees of the company, simply because of the absence of consultation of the staff representative bodies (Cass. Soc., 21 Sept. 2022, No. 21-10.718).

LABOR REFORM: The current rules of the unemployment insurance scheme and of the bonus-malus would be extended.

On 7 September, the Council of Ministers adopted a bill on emergency measures relating to the operation of the labor market with a view to full employment. The bill extends the current rules of the unemployment insurance scheme until 31 December 2023, whereas these were due to end in November 2022. This bill also extends the so-called bonus-malus system until 31 August 2024. As a reminder, this system, which came into force on 1 September 2022, is provided for at Article L. 5422-12 of the Labor Code and sets up a modulation of the unemployment insurance contribution rate in certain areas of economic activity according to the “separation rate” of the concerned companies.