The legal context
French employment law offers specific protection to employees’ representatives, for example staff delegates or members of the works council. Such protection exists in order to provide a safeguard against the employer inhibiting the representative from performing his/her duties. In this context, the main aspect of this protection is a requirement that a specific procedure be complied with in the event the employer wishes to terminate the employment of a protected employee.
More particularly, if an employer is to dismiss such an employee, it must follow a specific procedure which includes the holding of a pre-dismissal meeting with the employee and the consultation of the works council. In addition, the employer must request authorization from the Labour inspector to dismiss the employee. The Labour inspector will then examine the validity of the reason given for the dismissal and verify that there is no link between the dismissal and the exercise by the employee of his/her representative role.
However, such protection is limited in terms of time period (the exact protection period depends on the type of mandate held by the employee) and the protected employee is not entitled to be protected indefinitely. In this context, what happens when the employer dismisses an employee after the expiration of the protection period but on the basis of facts that had occurred during the period in which he/she benefited from a protection against dismissal?
In a recent case law dated 5th March 2015, an employee elected as member of the health and safety committee was charged with a breach of trust to the detriment of his employing company in 2001 and was subsequently convicted in 2008. As a consequence of such conviction, the Employer terminated the employment contract of the employee for disciplinary reasons. However, the employee’s protection period had just expired before the initiation of the disciplinary procedure. The employee, considering that such termination should have been submitted to the control of the Labour inspector, filed a claim before the employment tribunal to obtain the payment of damages and have the termination be held to be null and void.
The Supreme Court recalled the principle under which the dismissal of a protected employee notified after the expiration of the protection for events which have occurred during the protection period and which should have been submitted to the control of the Labour inspector is null and void. In this case, the Supreme judges found in favor of the employee and ruled that the employer, in waiting for the expiration of the protection whilst having an exact knowledge of the facts complained of against the employee, had committed a procedural abuse rendering the dismissal null and void.
This decision serves only as a reminder as such solution had already been applied by the Supreme Court in previous rulings. In doing so, the Supreme Court considers that the employer could not wait for the employee to lose his/her protection with a view to terminating his/her employment without the requirement of requesting the authorization of the Labour inspector. In other words, if the employer deliberately waits for the end of the protection period to dismiss the employee on the basis of facts that it was aware of in the course of the protection period, the specific procedure and the obligation to request the authorization of the Labour inspector would still have to be complied with. Otherwise, the dismissal would be deemed as null and void and significant damages would have to be paid to the employee.