Failure to hold elections of staff representatives necessarily causes a harm to employees

French Cassation Court - Employment law Division, January 08th, 2020, ref. no. 18-20591


When a company reaches the threshold of 11 employees for 12 consecutive months, the employer has to set up a staff representative body called “Comité social et économique” (CSE), and thus to hold professional elections.

In this respect, the employer has several obligations: to inform his/her employees (article L. 2314-4 of the French Labour Code) and to convene the representative trade unions in order to negotiate the pre-election agreement (article L. 2314-5 of the French Labour Code).

If the electoral process does not lead to any result (in the event of a lack of a candidate), the employer must draw up a special-purpose report demonstrating that he/she has complied with this obligation, but that the process ended up without any elected representative (article L. 2324-8 of the French Labour Code).

The employer must take the initiative to hold these professional elections, but both trade unions and employees are entitled to request such elections to take place. In the event of such a request, the employer then has one month to initiate the election process (article L. 2314-8 of the French Labour Code). It is also provided for by law that this request may also be made after a period of six months has elapsed if a special-purpose report has been drawn up, establishing the absence of elected representatives.

If the employer does not comply with the obligation to hold the elections, as defined above, he or she may be held criminally liable for obstruction, incurring an imprisonment sentence (up to one year) and a fine (up to 7,500 euros) pursuant to article L. 2317-1 of the French Labour Code.

In addition, this is deemed to be an employer’s misconduct, and he/she may therefore be ordered to pay damages to the trade union that requested the elections to be held (Cass. Soc., May 07th, 2002, ref. no. 00-60282) and to the employees of the company.

In this respect, case law has recently clarified that the employees do not have to demonstrate the existence of a particular damage in order to obtain compensation. Failure to set up employee representative bodies within the company necessarily causes harm to employees (Cass. Soc., May 15th, 2019, ref. no. 17-22224). This remains applicable even if they have remained silent for several years and only invoked such a harm after the termination of their employment contract (Cass. Soc., January 08th, 2020, ref. no. 18-20591).

Indeed, in a recent case, an employee’s claim for damages due to the failure to hold elections for staff representatives had been first dismissed; the Appeal Court stated that the employee had challenged the failure to hold elections for staff representatives only after 18 years of service, and only during the notice period prior to his retirement.

The French Cassation Court, in a decision dated January 08th, 2020, annulled the decision of the Appeal Court, considering that it does not matter that the employee invoked this fact only after so many years and only at the very term of his/her employment contract. With this decision, it recalls that an employer who has not complied with his/her obligations to set up staff representative bodies, and this without a special-purpose report having been drawn up due to the absence of elected representatives, committed a misconduct. This necessarily causes “a harm to the employees, thus deprived of the possibility of being represented and having their interests defended. “

Employers should take note of these facts. Invoking the silence of their employees, even if it would have lasted throughout the entire contractual relationship, is not an option.

 

Thierry Cheymol

Employment law team

Lmt Avocats