OD FLASH | Abusive exercise of the right to resign by a protected employee justifies approval of his dismissal

Conseil d’État, 4ème – 1ère chambres réunies, 28 mai 2024, 472007

As a reminder, article L. 4131-1 of the Labour Code stipulates that employees may withdraw from any work situation which they have reasonable grounds to believe presents a serious and imminent danger to their life or health, as well as any defect they observe in the protection systems. In addition, article L.4131-3 of the same Code stipulates that the exercise of the right to withdraw from work, within the strict limits of the conditions set out in the aforementioned article, shall not give rise to any sanctions or deductions from pay.

In its judgment of 28 May 2024, the Conseil d’Etat ruled for the first time on the validity of a dismissal authorisation granted to an employer who accused a protected employee of improperly exercising his right to resign.

In this case, a company applied to the administrative authorities for permission to dismiss a protected employee for disciplinary reasons. The worker had been employed as a delivery driver since January 2008. In a decision dated 12 April 2018, the labour inspector authorised the dismissal on the grounds that the employee’s abusive exercise of his right of withdrawal on two occasions on 4 January 2018 and his unjustified refusal to come to work on 12 January 2018, when he was merely observing the loading and unloading operations in progress, constituted a set of facts sufficiently serious to justify the dismissal. The employee considered it legitimate to exercise his right to resign on the grounds that the employer had not provided him with a “sweater” and a “T-shirt” in addition to his protective clothing, despite the fact that the protective equipment leaflet recommended wearing materials under the protective clothing that would not melt in the event of a rise in temperature and advised against wearing the clothing next to the skin. He also exercised the same right of withdrawal on 8 January 2018, even though he was also a mere observer, on the ground that the uniform provided to him and worn only once was dirty, even though it did not appear from the file that the uniform had been stained by flammable products.

The employee appealed against this decision, which was rejected by the administrative court. He appealed against this decision and then, following the successive rejections of his appeals, appealed to the Conseil d’Etat.

After recalling the principle of the right of resignation, the Conseil d’Etat reiterated that it is for the labour inspector to determine whether the acts of which the employee is accused are sufficiently serious to justify dismissal, taking into account all the rules applicable to the employee’s contract of employment and the “specific requirements for the normal performance of the mandate entrusted to him”. It must also check that the misconduct is not related to the representative duties normally performed or to the employee’s trade union membership”.

It added that it was also up to the administrative authority to determine whether the employee had reasonable grounds to believe that the work situation posed a serious and imminent danger to his or her life or health, in order not to authorise the dismissal. The Conseil d’Etat endorsed the analysis of the Administrative Court of Appeal, which did not make any errors of law or legal characterisation.

The Conseil d’Etat also agrees with the lower courts’ finding that the employee’s refusal to come to work on the following day, 11 January 2018, without a legitimate reason, even though he had previously been informed of his end-of-day schedule, was sufficiently serious to justify dismissal. The Conseil d’Etat thus ultimately upheld the lower courts’ decision that the employee’s misconduct could be considered sufficiently serious to justify his dismissal, as the request for authorisation to dismiss was unrelated to the mandate. The employee’s appeal was therefore rejected.

With this decision, the Conseil d’Etat ruled for the first time on the assessment of the right to resign exercised by a protected employee. The Court of Cassation, for its part, had already had occasion to rule on the situation of an unprotected employee, stating that unjustified use of this mechanism could constitute grounds for dismissal for serious misconduct (Cass. soc., 21 January 2009, no. 07-41.935).