France (EN) 
US 
Canada 
Mexico 
Germany 
UK 
An employee, hired as a department head by a home help association, was made redundant on economic grounds. She contested her dismissal, arguing that her employer had failed to fulfil its obligation to redeploy her, having failed to seek available posts within other associations with which it had close links.
The Court of Appeal had upheld the employee’s claims. In ruling that the employee’s dismissal was without real and serious cause, the Court of Appeal noted that the employer organisation was one of the founding members of another organisation, that it paid an annual subscription to it, and that the purpose of this structure was the pooling of technical, human and financial resources amongst several member organisations. It had concluded that these associations formed a redeployment group, within which the transfer of all or part of the staff was possible.
The Court of Cassation rejected this analysis on the basis of Article L. 1233-4(2) of the Labour Code.
The Social Chamber points out that, for the purposes of applying the redeployment obligation, the concept of a group presupposes the fulfilment of two cumulative conditions:
– A relationship of control: the existence of a group comprising a parent company and controlled companies, within the meaning of Articles L. 233-1, L. 233-3 I and II or L. 233-16 of the Commercial Code;
– The possibility of staff redeployment: within this group, the existence of activities, an organisation or a workplace allowing for the redeployment of all or part of the staff.
Thus, it is not sufficient to establish the existence of functional links, operational cooperation, the pooling of resources or organisational proximity between several structures. The trial judges must, prior to any other examination, verify whether the conditions of control provided for by the Commercial Code are met.
In this case, the Court of Appeal had based its decision solely on the employer association’s status as a founding member, on the payment of an annual subscription and on the statutory purpose of pooling resources. Although these elements established a form of cooperation between the organisations, they were insufficient to characterise the existence of a redeployment group, in the absence of prior verification of a controlling relationship within the meaning of the Commercial Code.
This judgment forcefully reiterates that the scope of redeployment cannot be extended to legally distinct organisations on the sole ground that they cooperate with one another or pool certain resources. Even in the voluntary sector, where cooperative links are common, the characterisation of a redeployment group first requires establishing the existence of a controlling interest meeting the strict criteria of the Commercial Code. Employers in the voluntary sector may therefore limit their redeployment searches to their own organisation alone, in the absence of evidence of such a controlling interest.
