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A protected employee cannot be dismissed based on facts for which they have already been sanctioned

According to French law, certain categories of employees benefit from a specific protection against dismissal, as their employer must seek authorization from the French Labour Inspectorate before terminating their employment contract, (Articles L2411-1 et seq. of the French Labour Code).

This mainly concerns employees with representative functions in the company, in particular staff representatives or trade union delegates.

In a recent decision, issued on 17 January 2024, the French Administrative Supreme Court (“Conseil d’Etat”), ruled for the first time that once the employer has exhausted its disciplinary powers, it cannot dismiss the protected employee based on the same facts.

In this case, the Company temporarily suspended a protected employee for three days, in December 2017.

A few months later, the employer requested the French Administration’s authorisation to dismiss the employee for misconduct, based on events that occurred between September 2017 and January 2018. The employee’s previous temporary suspension was not based on these events, but the employer was aware of these facts when it took the initial disciplinary sanction.

The Labour Inspectorate thus rejected the request. The employer then referred the matter to the Minister for Employment, who authorised the dismissal of the protected employee.

The protected employee petitioned the French Administrative Supreme Court in order to challenge the Minister for Employment’s decision to authorise his dismissal.

The French Administrative Supreme Court considered that, as the employer had already been made aware of the events justifying the employee’s dismissal when it decided to suspend him for three days in December 2017, the company had exhausted its disciplinary powers for these same facts. It therefore quashed the authorisation to dismiss the protected employee.

For the first time, the French Administrative Supreme Court thus applied well-established case law of the French Supreme Court (“Cour de cassation”) to protected employees.