OD FLASH | Joint employment: The absence of a corporate group does not preclude a finding of joint employment.

Pourvoi n°24-22.174 | Cour de cassation

An employee is hired as a medical representative by a company that exclusively provides services to promote drugs manufactured by another company. Following the definitive termination of the medical promotion service contract and the filing for bankruptcy of his employer, the employee filed a claim with the labor court against both companies seeking recognition of the principal company—for which his employer worked exclusively—as a co-employer. He consequently sought a declaration that his dismissal was null and void, his reinstatement with that company, and compensation for the resulting damages.

The Court of Appeal rejected the claim of co-employment on the grounds that the two companies did not belong to the same group, and that therefore the existence of interference by one company in the economic and social management of the other could not be established.

The Court of Cassation overturned this decision. It first recalled its case law holding that joint employment can only be established where there is a direct relationship of subordination, or when, beyond the mere economic coordination inherent in their commercial relations, there is a permanent interference by the company designated as a joint employer in the economic and social management of the employer, leading to the total loss of the employer’s autonomy of action. It specifies that this classification is in no way contingent upon the existence of a corporate group. Consequently, by inferring from the mere absence of a group that such interference could not be established, the Court of Appeal violated Article L. 1221-1 of the Labor Code.

The High Court also found a lack of reasoning. The employee argued that the contracting company intervened in all of his employer’s essential functions through a management assistance agreement. According to him, this arrangement led to control over the company’s administrative, financial, social, and operational management, with certain contractual provisions even requiring the company to comply with the directives of the principal company. He also cited an internal procedure indicating a lack of managerial autonomy on the part of the service provider. However, to rule out any situation of joint employment, the Court of Appeal had merely asserted that the assistance agreements were lawful and did not, in and of themselves, constitute interference in the employer’s management, without specifically examining their content or addressing the arguments raised by the employee, which consequently led to the Court of Cassation overturning the ruling.

This decision confirms that the concept of co-employment is not limited solely to intra-group relationships. Membership in a group constitutes only a contextual element and not a legal condition for characterizing a situation of co-employment.