Disciplinary transfer and (newly) protected employee

Court of cassation, Social Division, October 4, 2023, n°22-12.922

Disciplinary transfer and (newly) protected employee: protection against any imposed change in working conditions applies, even during disciplinary proceedings.

As a reminder, “protected” employees, i.e. those benefiting from the protective status granted by the French Labor Code due to the exercise of certain specific functions (staff representative, trade union functions, employee representative, etc.), cannot have their working conditions modified.

This means that, unlike their colleagues, protected employees cannot, for instance, have a change of workplace imposed on them, even if the new workplace is very close (within the same geographical area) to their current workplace.

In the event of refusal to accept a change in working conditions, the protected employee’s employer must therefore choose : either to maintain the performance of work under the current conditions, or to initiate dismissal proceedings on the grounds of this refusal, which is in principle wrongful.

On October 4, 2023, the French Supreme Court clarified that this rule also applies to employees who “obtain” the benefit of protective status during disciplinary proceedings.

In the case leading to the ruling of October 4, 2023, an employee had stood as a candidate in his company’s professional elections, after having been summoned to and then received at an interview prior to disciplinary proceedings.

After his employer had informed him of his candidacy, he was notified of his disciplinary transfer from one workplace to another.

He contested this disciplinary transfer, which constituted a change in his working conditions, to no avail, since his employer confirmed that the disciplinary sanction would be applied.

The Court of Cassation ruled that, having become a protected employee during the disciplinary procedure, he could no longer have such a change in his working conditions imposed on him.

His employer should therefore have refrained from imposing the disciplinary transfer on his employee.

It should be noted that in matters of dismissal, the employer need only take into account the employee’s protected status – and consequently request authorization for dismissal from the Labor Inspectorate – when he is informed of the employee’s protected status prior to sending out the notice of interview prior to dismissal. (Cf. Article L.2411-7 of the French Labour Code).

The rule laid down by the French Supreme Court on October 4, 2023 is therefore stricter for disciplinary transfers than for disciplinary dismissals.