The legal background

Under French employment law, employees’ representatives benefit from specific protection against dismissal. As a result, an employer contemplating the termination of the employment contract of such a protected employee must first obtain the prior authorization of the labor inspectorate. However, the employer is entitled to suspend the employee’s employment contract temporarily pending the outcome of the request for authorization.

In the event the employee has been so suspended and the dismissal authorization is ultimately refused, the employee has the right to be reinstated in his/her previous position in the same working conditions. In this respect, case law only permits one exception to such rule, i.e. “absolute impossibility”.

In this context, does “absolute impossibility” exist when the other members of personnel themselves strongly oppose the reinstatement of the protected employee?

The case

In a recent decision dated 24 June 2014, an employee, holder of several positions as employees’ representative, was suspended following the revelations of his colleagues accusing him of moral harassment. The employer initiated a dismissal procedure but the labor inspector found that the moral harassment was not sufficiently evidenced and thus refused to authorize the dismissal. As a result, the employee was reinstated within the company but the employer, in order to pacify the situation, relieved him of the management of the employees who had complained about his behavior. Considering that his contract had been modified upon his return, the employee successfully requested a court injunction ordering the employer to reinstate him in his previous position subject to a daily fine in the event of non-reinstatement, and subsequently lodged an action to enforce its payment.

The Court of Appeal rejected the employee’s claim and held that the payment request of the fine should be denied. In support of this decision, the judges ruled in particular that the right of reinstatement is not absolute and must be reconciled with the employer’s duty to protect the health and safety of its employees.

The ruling of the Supreme Court

However, the Supreme Court reversed the decision of the Court of Appeal considering that the opposition of part of the staff to work with the employees’ representative did not constitute an absolute impossibility to reinstatement of the employee.

This ruling of the Supreme Court is in line with previous case law according to which the hostility of the personnel does not entitle the employer to escape its reinstatement obligation. Rather, case law seems to limit the “absolute impossibility” to exceptional circumstances such as bankruptcy or closure of the business. In practice, the employer has no choice but to reinstate the employee fully in his previous post without being allowed to adapt it to the circumstances. The only solution for the employer would be to change the working conditions of the other employees in order to avoid further issue or to discipline the reluctant employees if they refuse to work with the reinstated employee (which would not have been appropriate here given the context).

Finally, if the employer fails to comply with its reinstatement obligation, the employee is entitled to seek a court order for reinstatement, subject to a penalty fine in the event of non-reinstatement, as well as the payment of the salaries lost during his/her suspension and possible damages for any loss suffered. In addition, the violation of such obligation could also be punished by specific criminal offenses, violation of which can trigger a fine of up to 3,750€ for the employer and/or 18,750€ for the company and an imprisonment of up to 1 year. Ultimately, the employee would be in a position to allege a case of constructive dismissal and to consider the employment contract terminated with the same effect as that of a null and void dismissal.


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