OD FLASH | Trade union discrimination: a refusal to authorize the dismissal of a protected employee does not give rise to a presumption of discrimination

Cour de cassation, Social Chamber, 8 July 2026, No. 25-11.962

 

 A protected employee who had held several employee representative mandates sought damages for trade union discrimination. He argued that his employer’s attempt to dismiss him for misconduct, which had been refused by the Labor Inspector and subsequently by the Minister of Labor because of doubts as to the alleged misconduct, was in itself sufficient to give rise to a presumption of trade union discrimination.

The French Supreme Court upheld the lower courts’ decision rejecting this argument. It held that the mere submission to the labor authorities of an application for authorization to dismiss a protected employee, where such authorization is refused because of doubts regarding the alleged misconduct, is not, in itself, sufficient to constitute evidence giving rise to a presumption of trade union discrimination.

The Court concluded that such a refusal to authorize the dismissal does not, by itself, alter the burden of proof applicable in discrimination claims or require the employer to demonstrate that its decision was justified by objective reasons unrelated to any discriminatory motive

Accordingly, the mere submission of an application to the labor authorities seeking authorization to dismiss a protected employee, where such authorization is refused because of doubts regarding the alleged misconduct, does not, in itself, constitute evidence giving rise to a presumption of trade union discrimination.