OD Flash | The difference in treatment resulting from the maintenance by substitution agreement for the sole benefit of the employees of an absorbed company is presumed justified

Cass. soc. 5 février 2025 n° 22-24.000 FS-B, Sté Arianegroup c/ C. 

Business transfers often result in the bringing together of employees from different entities with different collective statuses within the same legal structure, which can lead some employees to retain the benefits they enjoyed before the transfer and thus raise questions regarding the principle of equal treatment.

In the present case, on May 1^st, 2012, one company was absorbed by another. This merger-absorption resulted, in application of Article L. 2261-14 of the French labor Code, in the application of the collective agreements and conventions of the absorbed company being called into question, including a company agreement of February 22, 1982 relating to the compensation of transportation costs. This agreement provided, in particular, for a mileage allowance for employees whose shift start or end times do not allow them to use public transport.

Subsequently, an open-ended agreement was concluded on June 27, 2012, providing for the maintenance of the previous collective statutes within each entity, without any ‘cumulative or simultaneous’ application of the contractual provisions between them. A new fixed-term agreement was signed on June 10, 2013, in order to extend the period of application of the agreements in question.

An employee hired by the absorbing company before the merger was transferred to the site of the absorbed company as of March 1st, 2014, but did not receive reimbursement of his transportation costs. He then took the matter to the labor court, considering himself a victim of unequal treatment. Dismissed at first instance, he then decided to appeal and managed to get his employer ordered to pay a sum for the reimbursement of transportation costs, as the trial judges considered that the employer did not justify the unequal treatment with an objective and relevant reason.

The company lodged an appeal to the Court of Cassation, considering that the difference in treatment was justified by the maintenance of a benefit acquired following the questioning of a collective agreement.

The Court of Cassation overturned and annulled the contested judgment, first recalling that differences in treatment between employees belonging to the same company, established by a substitution agreement negotiated and signed by the representative trade unions, are presumed to be justified. As such, it is up to the party challenging the differences to prove that they are unrelated to any professional considerations.

It then specifies that the difference in treatment resulting from the continued reimbursement of transportation costs only to former employees of the absorbed company’s site “was not unrelated to any consideration of a professional nature”.