When a trade union delegate resigns, protection against dismissal applies until the employer is expressly informed.

Cass. soc., June 14, 2023, n°21-18.599

Under the terms of article L. 2411-3 of the French Labor Code, “The dismissal of a trade union delegate may only take place after authorization from the labor inspector. This authorization is also required for the dismissal of a former union delegate, during the twelve months following the date of cessation of his functions, if he has exercised these functions for at least one year”.

In this case, a union delegate had informed his union on January 21, 2016, that he was resigning his mandate, which he had held for less than a year. On January 28, 2016, the employer, who had obviously heard of this resignation, hand-delivered to the employee a summons to attend a meeting prior to any disciplinary action, up to and including dismissal.

However, it was only on February 1, 2016, that the employer was informed, in writing by the union, that the employee concerned had renounced his mandate as union delegate.

The employee was dismissed for gross misconduct on March 4, 2016.

As a result, the employee brought the matter before the industrial tribunal, taking the view that, on the date the dismissal procedure was initiated, the protection from which he benefited had not expired, so that the employer should have sought administrative authorization before being able to dismiss him.

The employer argued that the renunciation of the trade union delegate’s mandate had produced its effects from the moment the employee had informed his trade union on January 21, 2016, so that from that date he could no longer invoke his protective status in relation to third parties.

Moreover, the employer justified having been informed of this, referring to an extract from the minutes of the employee’s hearing by the police, at which she had stated “that during a works council meeting on January 26, 2016, the company director had said he didn’t know if I could attend this meeting as he would first have to contact his legal counsel to find out if I had the right to take part. I would like to make it clear that I had been summoned by the company director to take part in this meeting”. In response, both the Labour Court and the Court of Appeal ruled that the dismissal was null and void for breach of the protective status, a ruling upheld by the French Supreme Court, which pointed out that an employee’s resignation from his position as union representative takes effect vis-à-vis the employer on the date on which he is notified of the resignation.

The evidence adduced by the employer to demonstrate that it had been informed of the employee’s resignation prior to February 1, 2016, the date of the union’s letter, was deemed insufficient.

This decision is therefore an opportunity to point out that when a mandated employee intends to renounce his mandate, and the employer intends to take any decisions concerning him, it is up to the employer to ensure that he is in possession of useful and indisputable evidence to demonstrate that he was informed prior to the implementation of the measure, or to wait for official confirmation, or even to request it if necessary.

Furthermore, in its review, the Supreme court recalls that an employee dismissed in disregard of his protective status, after the expiry of the protection period, cannot benefit from this indemnity which, by its very nature, covers the prejudice linked to the loss of the mandate.

However, in this particular case, there was no longer any prejudice linked to the loss of the mandate, as the employee no longer benefited from any mandate or protective status (the latter having expired on February 1, 2016) when he was dismissed on March 4, 2016.