OD FLASH | Contractual termination and protected employee: the administrative judge alone is competent to assess the validity of the CR, and a context of moral harassment alone cannot characterize a defect in consent.

Conseil d’État, May 16, 2025, no. 493143

A protected employee has signed a contractual termination with her employer, which has been authorized by the Labor Inspection (for the record, while the Labor Inspection only approves agreements for “conventional” employees, it authorizes or does not authorize contractual termination for protected employees).

Believing, however, that her consent had been vitiated, the employee concerned some time later brought an action against her former employer, then in receivership, before the Conseil de Prud’hommes (industrial tribunal), seeking payment of various indemnities.

In accordance with established case law to the effect that the assessment of the validity of a contractual termination can only fall within the jurisdiction of the administrative judge (Cass. Soc. December 20, 2017 n°16.14880), the Mulhouse Industrial Tribunal then stayed its ruling until the Administrative Court had ruled on this preliminary question (Decree n°2015-233 of February 27, 2015).

In a ruling handed down on March 19, 2024, the Strasbourg Administrative Court took the opposite view to that of the Labor Inspection : in considering that the employee’s consent had been vitiated, it held that she had been subjected to moral harassment by her employer and that, consequently, the moral violence exercised by her employer was such as to affect her consent to the contractual termination. In this respect, the Court relied in particular on an e-mail sent by the employee to the Labor Inspection, in which she expressed her intention to request a contractual termination in the absence of having been declared unfit for work by the occupational physician.

The Conseil d’Etat censured this reasoning. First of all, it points out that it is the responsibility of the Labor Inspection, as part of the procedure for authorizing a contractual termination entered into by a protected employee, to check that no circumstances relating to the employee’s normal representative functions or union membership have been such as to vitiate his or her consent.

It goes on to stress that the existence of acts of moral harassment or union discrimination committed by the employer to the detriment of the protected employee is not, in itself, such as to prevent the Labor Inspection from authorizing a contractual termination, unless these acts have, in the case in point, vitiated the employee’s consent.

However, in the present case, the employee was accompanied by a lawyer during the procedure to terminate her employment contract, which she herself had requested; she had also had several exchanges with the company doctor in the weeks leading up to it. Furthermore, the employer had not initiated the termination, had not put any pressure on the employee and had signed the contract after two meetings more than a week apart.

The Conseil d’Etat consequently annulled the judgment on the grounds that it had incorrectly qualified the facts of the case and, by the same judgment, settled the case on its merits, pursuant to article L 821-2 of the French Code of Administrative Justice.

In this respect, in ruling that the Labor Inspection’s decision was not tainted by illegality, he noted that, contrary to the employee’s argument, the consultation of the CSE had been in order, and that the presence of the Human Resources Director alongside her employer’s legal representative at the preliminary interview, when she had appeared alone, could not be equated with coercion. Last but not least, in line with the case law of the French Supreme Court (Cass. Soc. January 23, 2019 n°17-21.550), the Conseil d’Etat once again emphasized that, even if a context of moral harassment had been alleged, this circumstance was not such as to prevail over the fact that it had not been objectively established that the employee’s consent had been vitiated.