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French Supreme Court (Cour de Cassation), Social Division, November 27, 2024, No. 23-13.806
In this case, an Economic and Social Unit (UES) was established within a group of companies specializing in home care services. This UES is equipped with a single Social and Economic committee (CSE).
The CSE brought legal action against the various associations and companies comprising the UES, arguing that the employer had failed to comply with its obligations to inform and consult the CSE regarding reorganization projects for two of the associations.
The CSE’s claims were dismissed in the first instance. The CSE filed an appeal, but without success. The CSE then lodged an appeal before the French Supreme Court, challenging the appellate decision for refusing to suspend the reorganization project due to the employer’s failure to inform or consult the CSE. Specifically, the CSE argued that the measures proposed by the employer were significant enough to mandate consultation, given that they involved the introduction of new technology and organizational changes impacting several individual employees.
The French Supreme Court rejected the CSE’s appeal. First, it recalled that under Article L. 2312-8 of the French Labor Code, the CSE’s role is to provide collective employee representation, ensuring that their interests are consistently taken into account. Furthermore, the CSE must be informed and consulted on matters regarding the organization, management, and overall operation of the company, particularly on measures likely to affect workforce volume, structure, or to introduce new technologies.
In this case, however, the measures in question involved a software change, modifications to job descriptions, and a reorganization of office space. These, the Court ruled, constituted individual or occasional measures. Each measure was analyzed in detail to assess their nature. Regarding the reorganization of office space, the Court found that the alleged creation of an open-plan office was not proven, and testimony from seventeen employees confirmed that the reorganization had not altered their working conditions. Concerning the software change, testimonies from the same employees, along with the testimony of the group’s IT manager, indicated no impact on working conditions. Lastly, with respect to the modifications to job descriptions, the Court noted that the organization of on-call duties remained unchanged, and employee testimony corroborated the absence of significant alterations to their work organization. Moreover, the Court pointed out that the reduction of eight employees in the workforce was the result of their voluntary transfers, rather than employer-driven measures.
Consequently, as none of these measures had an impact on the organization, management, or overall operation of the company, nor were they likely to affect workforce volume or structure, there was no obligation to inform or consult the CSE.
While it is established case law that the CSE may file for emergency proceedings before a judicial tribunal to suspend the implementation of a project until the required consultation has occurred, and even to mandate such consultation under penalty of fines (i.e., Cass. soc. Nov. 28, 2000, No. 98-19.594; Cass. soc. Mar. 5, 2008, No. 07-40.273; Cass. soc. Jul. 10, 2019, No. 18-10.815), such consultation is unnecessary when the project involves individual or occasional measures “that do not affect the organization, management, or overall operation of the company and are not likely to alter the volume or structure of the workforce.”
This decision is not unprecedented, as the French Supreme Court has previously held that the employer’s obligation to inform and consult the CSE applies only when the measures envisaged are of a certain magnitude and do not qualify as individual or occasional measures (e.g., Cass. Crim. Jun. 17, 1986, No. 85-91.956; Jun. 2, 1992, No. 91-86.979; Jan. 13, 1998, No. 96-81.478).