The Supreme Court (State Council) clarifies the applicable procedure in case of termination of the employment contract of a protected employee

Under French law, a specific category of employees benefit from a protection against the termination of their employment contracts, particularly in case of dismissal. This category includes employees with an employee representation mandate.

 

For them, the employer must follow a strict administrative procedure and cannot dismiss an employee without the prior authorization of the Labour administration. 

 

Depending on the nature of the mandate held by the employee, the employer may also need to consult the works council before sending the request to the Labour administration. (Article L. 2421-3 of the French Labour Code).

 

There was nevertheless a doubt whether this obligation to consult the works council should also apply in small companies, with less than 50 employees, or only in companies with at least 50 employees.

 

In fact, the works council is not entrusted with the same powers and tasks, depending on the size of the employer company.

 

The wording of the French law, resulting from Order N°. 2017-1718 of 20 December 2017, has given rise to a difficulty of interpretation, i.e.: does the obligation to consult the works council apply to all companies with a works council (which has to be elected in any company withat least 11 employees) or only to those with a works council with extended prerogatives(companies with at least 50 employees)?

 

In an opinion issued on December 19, 2021 and published in the Official Journal of January 9, 2022, the State Council confirmed the position already expressed by the Ministry of Labour, according to which “only the works council with consultative powers in companies with at least 50 employees must be consulted on any dismissal, whatever the reason”.

 

The consultation of the works council with reduced prerogatives (in companies with less than 50 employees) can nevertheless be made mandatory by a collective agreement. 

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