The legal context
Under French employment law, employees’ representatives such as staff delegates or members of the works council enjoy a specific protection. In particular, if an employer wishes to dismiss such an employee, it must comply with a specific procedure which requires, inter alia, obtaining authorization from the Labour inspector. In this context, the Labour inspector will 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.
As a result of this protection, actions committed by an employees’ representative in the course of the exercise of his/her mandate may not normally be taken into account by the employer in order to dismiss him/her for disciplinary reason, as there is a clear distinction between the performance of the employee’s contract and his/her duties as an employees’ representative, in the course of which he/she is not under the subordination of his/her employer.
In this context, what happens when the representative resorts to violence in the course of his/her mandate? Can the employer discipline the employee?
In a recent decision of the Supreme Court dated 27th March 2015, a union delegate and union representative to the works council violently struck another employee with his head during a suspension of a meeting of the works council, causing the latter a fracture and a 30 days’ temporary incapacity to work. Naturally, the employer filed an authorization request to dismiss the employee, which the administration granted and therefore authorized the dismissal of the employee. Challenging the decision of the Labour inspector, the employee lodged an action before the administrative tribunal in order to have such decision cancelled.
The Supreme Court dismissed the argumentation put forward by the employee and noted that while the acts of an employees’ representative which take place outside the performance of his/her employment contract cannot justify a disciplinary dismissal, the solution is different when such acts constitute a violation by the employee of an obligation resulting from his/her employment contract. In this case, the Supreme judges considered that the employee did violate the obligation imposed on every employee not to infringe on other employees’ health and safety. Hence the conclusion that the employee’s behavior was sufficiently serious to justify his dismissal for disciplinary reason.
The meaning of the decision
Such decision clarifies the stance of the Supreme Court since it was not clear from previous case law to what extent the employer was entitled to dismiss for disciplinary reason a representative based on facts occurring in the performance of his/her representative functions. This position was further confirmed by a ruling of the same day which held that the fact that an employee’s representative carried out an activity for the benefit of a competing company during his mandate was a breach of his duty of loyalty and thus approved his subsequent dismissal. These rulings concur with other decisions which have held that it is possible to dismiss a representative for facts occurring in his/her private life if such facts constitute a violation of his/her contractual obligations. Finally, this case law expresses the obvious principle that, while the employees’ representative enjoys a specific protection for the interest of the workers as a whole, this protection is not absolute and cannot be perverted by the abuses of some individuals.