Newsletter - April 2015
French law no. 2015-366 of 31 March 2015 amended many provisions of the Code général des collectivités territoriales (CGCT – general code governing local authorities) with the aim of facilitating the exercise of their office by local elected councillors. One of these provisions gives them the benefit of rules applicable to protected employees, subject to certain conditions.
Some salaried employees are covered by special legislative and regulatory provisions in the event that their employment contract is terminated or not renewed. This protection is designed to avoid any reprisals by the employer for actions performed within the framework of certain mandates. Articles L.2411-1 and L.2412-1 and following of the Code du travail (Labour Code) list the employees who are protected in the event of dismissal or non-renewal of a fixed-term contract.
The main type of employees concerned are:
– trade union representatives,
– staff representatives,
– elected members of a works council,
– trade union representatives on a works council,
– former holders of offices,
– employees who requested the organisation of staff elections,
– candidates in staff elections.
Changes made by the new law
The law amends Article L.2123-9 of the CGCT which now stipulates that the Labour Code provisions relative to the above-mentioned protected employees apply to Mayors, on the one hand, and Deputy Majors of municipalities with at least 10,000 inhabitants on the other, who are salaried employees. These provisions are designed to avoid any employer action sanctioning an employee’s political postures.
Labour inspector control
Protected employees may not be dismissed or made redundant without the authorisation of the Labour Inspection, throughout their term of office and afterwards, for between 6 and 12 months. During an adversary investigation involving the employer and the employee, the labour inspector checks that the employment contract is not being terminated as a discriminatory measure further to the employee’s duties as representative.
If case of any serious misconduct by the employee, the employer retains its disciplinary authority and may sanction the employee by a measure commensurate to the wrongful behaviour, such as a suspension. However, where the employee is protected, the employer must notify and justify its decision to the labour inspector within 48 hours, or it will otherwise be invalid. If the labour inspector subsequently rejects the dismissal, the suspension and its effects are cancelled (any wages due must then be paid to the employee).
The labour inspector must make a decision within two weeks of the matter being referred. If no reply is given, the inspector is deemed to refuse the dismissal.
Where a fixed-term contract of employment is due to expire, termination may only be authorised by the labour inspector who must be notified one month before the contract expiry date. He will check that the termination is not a discriminatory measure against the employee.
Whether it is positive or negative, an inspector’s decision may be appealed by:
– application for reconsideration made to the labour inspector,
– escalation procedure to the Ministry of Labour,
– appeal to the administrative court,
If the authorisation to dismiss is cancelled, the employee has two months to request to be reinstated in the company.
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