OD FLASH | Notification of a disciplinary layoff to a protected employee is not subject to his prior agreement.

French Supreme Court, Social division, December 11, 2024, nº 23-13.332

In this case, an employee held several mandates. Most recently, he had been appointed trade union delegate. In this capacity, he benefited from the protection afforded by article L.2411-1 and subsequent articles of the French Labor Code.

The protected employee was given a five-day disciplinary layoff, prompting him to bring an action before the labor court seeking to have the layoff cancelled, and for the company to be ordered to pay him various compensation amounts.

Following a ruling at first instance, his claims were upheld on appeal. To overturn this sanction, the appeal court ruled that, since no change to the employment contract or working conditions could be imposed on a protected employee, it was the employer’s responsibility to inform the employee of the possibility of refusing his disciplinary layoff. According to the appeal judges, this sanction entailed a change in his remuneration and in his working hours over the same period.

The employer therefore appealed to the French Supreme Court. He criticized the appellate court’s decision to annul the disciplinary layoff imposed on the employee, and consequently to order the employer to pay him certain sums in back wages and related paid leave. In its appeal, the employer argued that the disciplinary sanction of dismissal did not entail any modification of the employment contract, or even a change in working conditions: it merely had the effect of temporarily suspending the effects of the employment contract. Consequently, in striking down the disciplinary layoff notified to the employee with a staff representative mandate, after having held that it entailed a modification of his employment contract, and that the employer should therefore have informed him of his right to oppose it, the appeal court violated articles L. 1331-1, L. 1332-2 and L. 2411-1 of the French Labor Code.

The French Supreme Court (Cour de cassation) overturned the decision of the Court of Appeal, citing article L.2411-1 of the French Labor Code. It considered that, insofar as such a sanction was not intended to modify the employee’s employment contract, nor to change his working conditions, it was not necessary to obtain the prior agreement of the protected employee.

With this decision, the French Supreme Court (Cour de cassation) appears to be going back on a long-standing position (Cass. soc., June 23, 1999, no. 97-41.121). Above all, it confirms the case law of the Paris Court of Appeal of January 11, 2022 (no. 19/04408), which held that “ the holding of a mandate does not deprive the employer of his disciplinary powers, and that staff representatives are therefore not immune, the employer being able to pronounce any sanction ranging from a warning to a reprimand or dismissal, with the exception of those involving a modification of the employment contract ”.

Henceforth, it should be considered with certitude that a disciplinary layoff, which does not in itself modify an employment contract, can be notified to a protected employee, without his prior agreement.