The Social and Economic Committee (Works Council) – hereinafter the “CSE” – only needs to be consulted when one of its members is dismissed, if the company has at least 50 employees.
In principle, French law requires that the CSE be consulted before one of its member is dismissed. In an opinion dated 29 December 2021, the “Conseil d’Etat” (the highest French administrative court) specified that this consultation with the CSE is only compulsory in companies with at least 50 employees, unless such consultation has been provided for in a collective agreement.
The Labour Code states that the CSE must be consulted if the employer intends to dismiss an elected member of the CSE staff delegation, or a trade union representative, or a local representative who is a member of the CSE, an authorisation must then be requested from the labour inspector.
The powers of the CSE vary according to the size of the company. Thus, the Labour Code provides, in the chapter devoted to its powers, two separate sections: one relating to the powers of the committee in companies with between 11 and 49 employees, the other concerning companies with at least 50 employees. The question put to the Conseil d’Etat was whether this consultation is required in all companies with a CSE, regardless of the number of employees.
The Conseil d’Etat specified that in companies with between 11 and 49 employees, the CSE does not have to be consulted on the proposed dismissal of a staff representative, unless this has been provided for in a collective agreement; a collective labour agreement may contain more favorable provisions than the law regarding the powers of the social and economic committee.
Key Action Points for Human Resources and In-house Counsel
Before dismissing employee staff representatives, it is necessary to check the provisions of the company’s applicable collective agreements.