OD FLASH | A trade union cannot expect the judge to order the employer to regularize the individual situation of the employees concerned, given that such action falls within the personal freedom of each employee to defend his or her interests.

French Supreme Court, Social Division, January 22, 2025, n° 23-17.782

In this case, following restructuring plans, employees exercised their right to strike for several days. Believing that this movement was a reaction to the employer’s wrongdoing in refusing to provide staff representatives with essential information about the risks to the company’s French branch, the FEC-FO union and the strikers argued that this omission had caused intense stress and anxiety, prompting them to extend their strike. Therefore, they required the employer to pay the salaries corresponding to these days of strike.

Following the employer’s refusal, the union summoned him, by writ of May 21, 2021, to appear before the court of law in order to make him regularize the situation of his employees or former employees who participated in the strike by paying them the salary as well as the various bonuses they were deprived of as a result of this participation, and to order him to pay the FEC-FO union a damages sum in compensation for the harm caused to the collective interest of the profession.

The trial judges rejected the union’s request concerning the regularization of the sums to be paid to the employees. An appeal was lodged, again dismissing its requests. The union then appealed to the Court of Cassation, arguing that it follows from Article L. 2132-3 of the Labor Code that a union can take legal action to compel an employer to put an end to an unlawful situation. On this basis, it is admissible to request that the employer be ordered to regularize the individual situations of employees who participated in a strike in reaction to the employer’s wrongful behavior.

On this point, the French Supreme Court points out that, according to Article L.2132-3 of the Labor Code, trade unions have the right to take legal action, particularly on the basis of the collective interest of the profession they represent, whenever it has been directly or indirectly harmed. It follows from this text that a union may take legal action to have recognized the existence of an irregularity committed by the employer with regard to legal, regulatory or contractual provisions or with regard to the principle of equal treatment and request, in addition to the award of damages in compensation for the harm thus caused to the collective interest of the profession, that the employer be ordered to put an end to the irregularity observed. On the other hand, a union is not entitled to obtain a court order requiring the employer to regularize the individual situations of the employees concerned, as such an action falls within the personal freedom of each employee to defend his or her own interests.

Consequently, the action aimed at ensuring that striking employees are paid the wages and various bonuses they were deprived of as a result of their participation in the strike does not constitute an action in the collective interest of the profession, since it tends to regularize the individual situations of the employees, regardless of whether they have not been named. The Court of Cassation therefore approves the appeal ruling deeming it inadmissible.

This ruling is in line with a now well-established case law aimed at clearly separating claims that actually fall within the collective interest of the profession from those that only fall within the individual freedom of employees, for which trade unions are not admissible to act (for example: Cass. soc., Apr. 20, 2023, no. 23-40.003;  Cass. Soc; Nov. 22, 2023 no. 22-14.807).