France: Permission to dismiss may be struck down where it can be shown that the employer knew that the protected employee held a representative mandate outwith the company as such

From 2012 onwards, the Supreme Court (Cour de Cassation) has held that for an employee to enjoy the protective status attached to a mandate outwith the company itself (e.g. lay magistrate in the Industrial Tribunal i.e. conseiller prud’homal, employee advisor, Social Security fund officer), he must have notified his employer of that fact by the date of the preliminary hearing; should he not have done so, there must be evidence of the employer’s having learnt of the mandate in some other way.

The Conseil d’État has recently elaborated on the principle and its implications, in relation to the procedure for obtaining the Labour Inspector’s permission to dismiss.

In the case at hand, a protected employee holding elected mandates within the company and acting as a lay magistrate in the Industrial Tribunal as well, had petitioned the Courts to strike down permission to dismiss, on the basis that the Labour Inspector had disregarded his magistrate’s role.  His employer had made no reference to the latter mandate when requesting permission to dismiss, claiming to know nothing of it.  The Conseil d’Etat held that where a protected employee holds a mandate unrelated to the company as such, he must personally notify his employer by the date of the preliminary hearing, unless there exist evidence that the employer had learnt of the mandate in some other way, which was the case here, since the mandate had been discussed at a Works Council session held prior to the preliminary hearing.