NewsletterNewsletter No. 208 – April 2026
TRADE UNION REPRESENTATION: The trade union which submitted a list of candidates in the elections, and the higher-level organisation to which it is affiliated, necessarily have standing to bring proceedings challenging the election of a representative, unless otherwise provided for in their constitution.
A trade union federation challenged the election of two union representatives, alleging a breach of the rules on balanced representation of men and women. The judicial court declared the claim inadmissible, holding that only the trade union present within the undertaking and having submitted candidates had standing to act. The Cour de Cassation quashed the judgment on the following grounds: “It follows from Article L. 2133-3 of the Labour Code that, unless otherwise provided by its constitution, a union of trade unions, to which the law grants the same legal capacity as trade unions themselves, may exercise the rights conferred upon them. Accordingly, both the trade union which submitted a list of candidates in the elections and the higher-level organisation to which it is affiliated necessarily have standing to challenge the election of a representative pursuant to Articles L. 2314-30 and L. 2314-32 of the same Code, unless otherwise provided for in the constitution of the latter” (Cass. Soc. 1 April 2026, No. 24-21.069).
RIGHT TO DISCONNECT: In the absence of an express obligation to respond to an employer’s request, there can be no infringement of the right to disconnect.
An employee on sick leave had voluntarily logged into his professional workstation and performed certain tasks on his own initiative, before subsequently alleging that his employer had failed to respect his right to disconnect, on the basis that no specific mechanism had been put in place to ensure the effective implementation of that right. The Cour de Cassation held that nothing “demonstrated that the employee was under an obligation to deal immediately with emails received, since most of them were automatic notifications, the employee having chosen to respond by voluntarily logging into his professional workstation for that purpose and performing occasional tasks”, so that no infringement of the right to disconnect could be established (Cass. Soc. 25 March 2026, No. 24-21.098).
TERMINATION OF A PROBATIONARY PERIOD DURING PREGNANCY: The burden of proof rests with the employer where a probationary period is terminated in respect of a pregnant employee.
During her probationary period, an employee informed her employer of her pregnancy. The employer terminated the probationary period a few days later. In dismissing the employee’s claims, the Court of Appeal held that the employer was not required to give reasons for terminating a probationary period and that the employee had not established any facts suggesting the existence of direct or indirect discrimination. The Cour de Cassation took a different view: “where the termination of a probationary period at the employer’s initiative occurs after the employer has been informed of the employee’s pregnancy, it is for the employer to demonstrate that its decision is justified by factors unrelated to the employee’s pregnancy” (Cass. Soc. 25 March 2026, No. 24-14.788).
SETTLEMENT AGREEMENTS AND LIMITATION PERIODS: The limitation period for challenging a dismissal is suspended for as long as the settlement agreement prevents the claim from being brought.
An employee had been dismissed for serious misconduct before the parties entered into a settlement agreement in relation to the termination of the employment contract. Fourteen months after her dismissal, the employee brought proceedings before the Employment Tribunal seeking a declaration of nullity of the settlement agreement and various sums in connection with the termination. The employer argued that the employee’s claim was time-barred. The Cour de Cassation held that the limitation period for challenging the dismissal was suspended for as long as the settlement agreement prevented the claim from being brought, and that it began to run again from the date of the judicial declaration of nullity of the settlement agreement Cass. Soc. 9 April 2026, No. 25-11.570).
LAW OF EVIDENCE: The production in court of documents covered by medical confidentiality is permissible where it is necessary for the purposes of the rights of the defense and proportionate to the aim pursued.
Employees brought proceedings before the Employment Tribunal seeking the reclassification of their positions to that of healthcare assistants. In support of their claim, they produced an extract from a nursing logbook containing data covered by medical confidentiality. Following this disclosure, the employees were dismissed for serious misconduct. The Cour de Cassation held that the document produced “did not contain the name of the establishment, so that it did not in itself enable the identification of the residents […]”. The French Supreme Court concluded that the production of this document in court by the employees, to which they had access in the course of their duties, was permissible since it “was necessary for the exercise of their right to adduce evidence and proportionate to the aim pursued, so that the dismissal on that ground was without real and serious cause” (Cass. Soc. 1 April 2026, No. 24-21 .452).
CONCEPT OF A GROUP: The court must verify that the employer belongs to a group meeting the criteria set out in the Commercial Code for the purposes of the redeployment obligation.
An employee of an association had been dismissed on economic grounds, which she challenged on the basis that the employer had failed to comply with its redeployment obligation by not seeking available positions within the group to which the association belonged. The Court of Appeal held that the employer was a founding member of another association and that the respective activities of the two entities, together with their organisation and place of operation, allowed for the transfer of all or part of the workforce, and therefore that the employer had failed to comply with its redeployment obligation. The Cour de Cassation held that such reasoning alone was insufficient and that it was also necessary to examine whether the control criteria required to establish the existence of a group within the meaning of the Commercial Code were satisfied (Cass. Soc. 15 April 2026, No. 24-19.018).
APPRENTICESHIP CONTRACTS: An apprentice may immediately terminate their apprenticeship contract in the event of serious breaches by the employer.
An apprentice sought to terminate his contract with immediate effect due to serious breaches by his employer. The Cour de Cassation has issued an opinion introducing a significant exception: where an employer commits serious breaches that make the continuation of the employment relationship impossible, the apprentice may immediately terminate the contract, even after the first 45 days. In such circumstances, the apprentice is not required to follow the standard procedure involving the intervention of a mediator and compliance with a notice period, although “it is then for the court, having regard to the alleged breaches, to assess their seriousness and to determine responsibility for the termination” (Cass. Soc. 15 April 2026, No. 26-70.002).