OD FLASH | The failure to provide a nominative list by site of employees assigned to client companies does not constitute a manifestly illicit disturbance with the exercise of the mandates of the members of the Works Council.

Cour de cassation, Chambre sociale, 27 novembre 2024, nº22-22.145

For the exercise of their functions, the elected work council member (CSE) and the union representatives within the work council have the freedom to move and travel within and outside the company. They can “freely circulate within the company and make all necessary contacts to accomplish their mission.” Limiting this right could constitute an obstruction to Works Council’s rights (Labor Code, Art. L. 2315-14, Cass. Criminal, February 22, 1962, no. 92-45.960). The issue differs when the employees in question work outside the company, particularly within client companies of the employer.

The Court of Cassation ruled in a judgment on November 27, 2024, on the concept of manifestly illicit disturbance when the nominative list of employees by “client site” has not been provided to the Works Council.

In this case, most employees of an Economic and social unit (UES) performed their duties within client companies, and the Works Council of one of the UES establishments sued the company before the emergency applications judge to obtain the communication of the nominative list of employees by “client site” and the locations of their interventions, claiming that the refusal of this communication hindered the exercise of its duties.

The Court of Appeal of Versailles ordered the company to provide the Works Council with the nominative list, for 2 years, no later than the 10th of each month, of the employees by “client site” and the locations of their interventions within the scope of the committee.

The company appealed to the Court of Cassation. It argued, among other things, that no legal provision requires the employer to provide the Works Council members with the nominative list of employees assigned to each client site, and that the right of council members to contact employees at their workplace was ensured by providing the council members with the list of sites where employees work, along with each employee’s professional email address, and by disseminating the contact details of council members to the staff.

The Court of Cassation overturned and annulled the Court of Appeal’s decision. It ruled that the judge had not demonstrated the existence of a “manifestly illicit disturbance resulting from the impossibility for elected Works Council member to make all necessary contacts to fulfill their mission with employees at their workplace in a third-party company,” as the Works Council had the list of employee intervention sites within its scope and the number of employees present on those sites and could contact employees through their professional email addresses.

With this decision, the Court of Cassation reminds that when a manifestly illicit disturbance is invoked, courts must check if the means already available to the Works Council allow it to achieve the intended goal, and that no legal provision obliges the employer to provide a nominative list of employees assigned to client company sites.