The Conseil d’Etat (French administrative court) clarified the administrative control of obligations to protect employees’ physical and mental health in the context of an employment protection plan (PSE).

CE, December 19, 2023 n°458434

In a ruling handed down on December 19, 2023, the Conseil d’Etat (French administrative court) clarified the administrative control of obligations to protect employees’ physical and mental health in the context of an employment protection plan (PSE).

On October 19, 2020, the Social and Economic Committee (CSE) was consulted on a proposed reorganization and related social measures provided for in a employment protection plan drawn up by majority collective agreement. In response to a request for validation, the DIRECCTE (DRIEETS since April 1, 2021) requested additional information on the identification of the risks generated by the reorganization and the preventive measures set out in the PSE. This information was forwarded to the administration and, at a meeting scheduled for November 10, 2020, presented to the CSE. On November 17, 2020, the DIRECCTE validated the collective agreement concerning the PSE.

At the request of a trade union and four of the company’s employees, the Paris Administrative Court cancelled this decision in a ruling handed down on April 13, 2021.

On September 14, 2021, following an appeal by the company and the Minister of Labor, the Paris Administrative Court of Appeal overturned this ruling, confirming the validity of the validation decision. 

The union and the employees then lodged an appeal, which was rejected by the Conseil d’Etat on December 19, 2023.

The Conseil d’Etat ruled on two points relating to administrative control in the area of employee benefits.

1) In the context of a PSE, it is the responsibility of the administration to check that the employer has sent the CSE all the information it needs to issue its two opinions in full knowledge of the facts on the proposed reorganization and collective redundancies, in accordance with article L.1233-30 of the French Labor Code, in particular the following information:

-identification and assessment of the consequences of the company’s reorganization on workers’ health and safety.

-as well as, in the presence of such consequences, the actions planned to prevent and protect workers from them, to ensure their safety and protect their physical and mental health.

The Conseil d’Etat’s ruling specifies that when the majority collective agreement setting out the PSE subject to validation concerns the health and safety consequences of the company’s reorganization, the administration must only verify the regularity of the CSE’s information on these elements, and not its consultation.

2)Once it has been established that the reorganization poses a risk to the health and safety of workers, it is also the responsibility of the authorities to check whether the employer has taken steps to remedy the situation, and whether these measures correspond to the precise and concrete measures provided for in Articles L.4121-1 and L.4121-2 of the French Labor Code.

• The Conseil d’Etat specifies that the administration must attach “particular importance” to the fact that such measures are included in the majority agreement relating to the PSE.

• With this decision, the Conseil d’Etat calls for social dialogue and encourages employers to negotiate, within the framework of a majority collective agreement, the provisions relating to risk identification and prevention measures.

• This means that administrative control over risk identification and prevention is less stringent when these points are covered by a collective agreement than when they are dealt with unilaterally and is more concerned with their consistency than their relevance.

• Although this is an isolated decision at this stage, it is nevertheless advisable not only to inform, but also to consult the CSE on the collective redundancy project, including the consequences of the reorganization in terms of health and safety.