OD FLASH | A union mandate does not justify the maintenance of hardship allowances, unless otherwise agreed, but protects the right to social benefits.

French Supreme Court, Social Division, 1 October 2025 – No. 23-17.765

In this case, a company had concluded a collective agreement “on the career path of employees holding representative and/or trade union positions”. The agreement regulates the career paths of employees holding representative positions and provided for the maintenance of allowances corresponding to the constraints inherent in the exercise of their profession (on-call allowance, annual bonus and continuous service allowance) for those placed on full leave of absence, for a maximum period of four years. At the end of these four years, employees who choose to continue their trade union/representative activities on a permanent basis are entitled to financial compensation.

These provisions were challenged by the National Federation of CGT Mine and Energy Workers’ Unions (FNME-CGT), which sought their annulment on the grounds that they were illegal and discriminatory.

The trial judges rejected the union’s arguments, arguing that the disputed allowances (on-call duty, continuous service allowance, etc.) did not constitute salary supplements that had to be maintained for the benefit of mandated employees who, by definition, were no longer exposed to these burdens and constraints, and that therefore no discrimination could be found. The FNME-CGT then appealed to the Court of Cassation, raising two main grounds.

In essence, in the first ground for appeal, the FNME-CGT argued that:

• that the non-payment, during delegation hours, of remuneration linked to the constraints inherent in the employees’ jobs constitutes trade union discrimination prohibited by law,
• that the difference in treatment between permanent union representatives and other employees is not based on an essential and decisive professional requirement pursuing a legitimate objective or a proportionate requirement,
• that the collective agreement, which must be interpreted strictly, provided for the maintenance of “remuneration linked to duties”, from which it must be inferred that the agreement provided for the general maintenance of remuneration elements linked to the constraints inherent in the job held, regardless of whether or not employees in jobs subject to particular constraints were actually exposed to those constraints,
• that the Court of Appeal did not demonstrate that the Company had provided objective evidence proving the absence of discrimination.

The Court of Cassation rejected these arguments and reasoned as follows:

• Firstly, with regard to Article 2.2 of the same agreement, the FNME-CGT argued that the agreement should not deprive the employee acting as a representative of compensatory allowances (for on-call duty, housing benefits, etc.) constituting a supplement to their salary, on the grounds that the use of delegation hours should not result in any loss of remuneration.

• The Court recalled the purpose of the remuneration elements in question:
  • on-call compensation remunerates the constraint of remaining available at home outside normal working hours and is only paid when it is actually performed;
  • the annual bonus is intended solely for certain employees in operational teams who are required to travel and stay away from home frequently;
  • the continuous service allowance compensates for the constraints associated with shift work and staggered working hours, which are specific to certain jobs.
• The Social Chamber then considers that “the purpose of the allowances in question, notwithstanding their lump-sum nature, is to compensate for the particular burdens and constraints to which certain employees are actually exposed, and not to remunerate the constraints inherent in their employment“.

• The Court ultimately concluded that, as these allowances do not constitute salary supplements that must be maintained for employees who are no longer exposed to these burdens and constraints, their maintenance constitutes a more favourable measure that is exclusively discriminatory.

Furthermore, in its second ground for cassation, the FNME-CGT argues, with regard to the principle of non-discrimination, that the use of delegation hours cannot reduce the calculation of length of service for the purposes of calculating a specific pension scheme linked to the performance of a function involving particular burdens and constraints – to which they are no longer exposed due to their total release from activity.

The Court of Cassation confirmed that this rate of active service, acquired prior to secondment, is a social benefit that cannot be taken away from the employee. Thus, the rate of active service constitutes a social benefit linked to the original job, and not to the actual performance of duties. The Court states that the criteria for active service are determined on the basis of objective, observable and quantifiable professional situations, using macro criteria that are detached from the individual employee. The active service rate must therefore be preserved for employees on secondment in order to guarantee equal treatment and protect their pension rights.

The Court of Cassation therefore quashed and annulled the judgment, but only on the second ground for cassation.