NewsletterNewsletter No. 207 – March 2026
TRADE UNION REPRESENTATIVE: The number of employees used to determine the rules for the designation of a trade union representative is assessed at the level of the undertaking rather than at the level of the establishment.
Following the election of members of the Social and Economic Committee (CSE) of an establishment, the Force Ouvrière trade union appointed a trade union representative within that body. Taking the view that the establishment’s workforce comprised fewer than 300 employees, the company argued that the trade union delegate performed, by operation of law, the duties of trade union representative to the CSE. The French Supreme Court (Cour de Cassation) upheld the union’s argument and reaffirmed, firstly, that each representative trade union is entitled to appoint a trade union representative to the CSE. Secondly, it specified that the assessment of the number of employees must be carried out at the level of the undertaking and not at the level of the establishment, and thus that the appointment of an employee, “who was not a trade union delegate, as trade union representative to the establishment’s CSE, was valid, regardless of whether the establishment comprised fewer than three hundred employees” (Cass. Soc., 4 March 2026, No. 25-17.467).
RECLASSIFICATION OF A TEMPORARY WORK CONTRACT: Reclassification as a permanent contract (CDI) provided for in Article L. 1251-40 of the Labour Code is not open to an employee made available to a user undertaking by an employers’ group.
An employee was made available to a user undertaking by a temporary work agency under several temporary assignments. After an interruption of more than one year, he was once again made available to the same undertaking, this time by an employers’ group[1], under a fixed-term contract. Relying on the provisions of Article L. 1251-40 of the Labour Code, the employee brought proceedings before the Labour Court seeking reclassification of his temporary contracts as a permanent contract. The Cour de Cassation stated as a reminder that “an employee made available by an employers’ group to one of its members may not rely, in relation to that member, on the provisions of Article L. 1251-40 of the Labour Code”, before specifying “that an employee made available to the same undertaking, first by a temporary work agency and then by an employers’ group, may claim, against that user undertaking, rights equivalent to those arising from a permanent contract only in respect of the assignment contract concluded with the temporary work agency” (Cass. Soc., 18 February 2026, No. 24-16.234).
DISCRIMINATION AND PERSONAL DATA PROTECTION: Evidence of sex-based discrimination must be balanced against the principle of personal data minimisation.
An employee brought summary proceedings before the Labour Court on the basis of Article 145 of the Code of Civil Procedure, seeking disclosure of pay slips in order to establish the existence of sex-based discrimination, reflected in less favourable career progression than that of her male colleagues. The lower courts granted the request, ordering disclosure of documents relating to male employees while specifying that surnames and first names could be redacted, since the disclosure of third parties’ personal data did not appear essential for the exercise of the right to establish sex-based discrimination. The Cour de Cassation followed this reasoning and stated as a reminder that it is for the judge “to ensure compliance with the principle of minimisation of personal data by ordering, if necessary of its own motion, the redaction, on the documents to be disclosed by the employer to the claimant employee, of all personal data relating to comparator employees that are not essential to the exercise of the right to evidence and proportionate to the aim pursued” (Cass. Soc., 4 March 2026, No. 24-20.428).
OPINION OF UNFITNESS: Unfitness for work may be established following a medical examination initiated by the occupational physician at the employee’s request.
While on sick leave, an employee requested a medical examination to be organised with the occupational physician. Following a workstation assessment, the physician took the initiative to organise a further examination, after informing the employer. Following this examination, the physician issued an opinion of unfitness. After having been dismissed on grounds of unfitness and impossibility of redeployment, the employee brought proceedings before the Labour Court. The Cour de Cassation reaffirmed that “unfitness may be established following an examination initiated by the occupational physician [at the employee’s request], provided that the physician has carried out at least one medical examination of the employee, (…) has carried out or arranged for a study of the workstation, has carried out or arranged for a study of the working conditions within the establishment, has indicated the date on which the company file was updated, and has engaged in an exchange, by any means, with the employer” (Cass. Soc., 11 March 2026, No. 24-21.030).
REDUNDANCY AND SECONDED WORKERS: Seconded workers are included in the headcount of the user undertaking for the purposes of implementing a redundancy procedure.
Faced with the suppression of 29 positions, a company initiated a redundancy procedure without implementing an employment protection plan (PSE), considering that the threshold of 50 employees required for such a plan had not been met. The company indeed took the view that the 11 workers operating under a service provision contract were not to be included in its workforce. Having been dismissed in this context, an employee brought proceedings before the Labour Court, alleging in particular the nullity of her dismissal on the grounds that the employer had failed to comply with its obligation to establish a PSE. The Cour de Cassation reaffirmed that, among the employees to be taken into account in a company’s workforce, “employees made available by an external undertaking, who are present on the premises of the user undertaking and have worked there for at least one year, are to be included in that headcount”, and specified that employees meeting these conditions must therefore be taken into account for the application of the provisions of Article L. 1233-61 of the Labour Code which relates to the implementation of a PSE (Cass. Soc., 18 March 2026, No. 22-10.903).
SUSPENSION OF CONTRACT AND SEVERANCE PAY: The period of suspension of the employment contract resulting from a period of absence from work due to a commuting accident is not taken into account when calculating the employee’s length of service.
An employee acknowledged the termination of his employment contract and brought proceedings before the Labour Court seeking reclassification as a dismissal without real and serious cause. Upholding his claim, the lower courts ordered the employer to pay statutory severance pay, calculated on the basis of length of service including the period of absence resulting from a commuting accident. The Cour de Cassation did not follow this reasoning and held that “the period of suspension of the employee’s employment contract resulting from a period of absence from work due to a commuting accident cannot be taken into account in calculating the length of service used to determine entitlement to, and the amount of, statutory severance pay” (Cass. Soc., 11 mars 2026, No. 24-13.123).