This newsletter summarizes four significant judicial decisions over recent months:

• Partial transfer of an undertaking: an ‘autonomous economic entity’ may be formed from parts of a number of different companies (CE, 28 October 2022, n°454355)

Where there is a partial transfer of a business (Article L. 1224-1 of the Labor Code), the labor authorities must authorize the transfer of a protected employee's contract. To this end, the Court must verify that there is a transfer of an ‘autonomous economic entity.’

But can this ‘autonomous economic entity’ be formed from parts of a number of distinct companies within the same group?

The French administrative Supreme Court found that this is possible. It recalled that an ‘autonomous economic entity’ is an organized group of persons and tangible and intangible elements which together allow the exercise of an activity which has its own objective, retains its identity on transfer, and is pursued by the new employer. However to that definition the Court added that it is possible for this business to be formed from parts of a number of distinct companies within the same group.

• The agenda of a central works council meeting may be amended at the beginning of the meeting (Cass. crim., 13-9-2022, n° 21-83.914 F-B)

The agenda for a central works council meeting did not include an item to take a decision on legal action against the employer to be initiated by the works council, nor a mandate for the works council’s secretary to lead this action. At the beginning of the meeting the members of the council unanimously voted to add this item to the agenda.

The meeting voted in favour of the new agenda item, and the works council secretary then initiated the legal action against the employer. The employer challenged the secretary's authority to bring the legal action against it. The employer argued that the works council's decision to take legal action was not valid because it had not been included in the agenda before the meeting.

The French Supreme Court rejected this argument on the basis that the council members had not objected to the item being included in the agenda and must therefore be considered as having been notified in good time. The employee representatives were therefore able validly to add the item to the agenda at the beginning of the meeting.

This decision can be considered as applicable also to a Company’s Social and Economic Committee.

• Expressing disagreement with management during a meeting is part of the French right to freedom of speech (Cass. soc., 21-9-2022, n° 21-13.045 FS-B & Cass. soc., 28-9-2022, n° 20-21.499)

During a [staff/ Town Hall/collective expression] meeting, an employee made negative comments about the way in which his manager organized the employee’s work and the resulting work overload. As a result of these comments the employee was dismissed for simple misconduct, which he challenged in court.

Dismissing the employee’s claims, the Court of Appeal considered that his behavior could be analyzed as an act of insubordination and an attitude of disparagement towards his employer.

The French Supreme Court agreed with the employee and overturned the appeal decision on the basis that the provisions of the Labor Code establish a right of direct and collective freedom of speech and that employees exercising this right are protected from any sanction or dismissal.

In another similar case, an employee received a warning for having expressed his disagreement with management during a work meeting. He claimed constructive dismissal and requested that this be categorized as a dismissal without real and serious cause.

The appeal judges ruled against him, pointing out in particular that the expression of a dissenting opinion from a manager, who was supposed to unite employees placed under his responsibility and support the policy implemented by management, was likely to harm the business.

The employee won his case before the Supreme Court on the grounds that, except where there is abuse resulting from insulting, defamatory or excessive comments, an employee enjoys freedom of speech both inside and outside the company.

• The transfer of more than 250 work emails to an employee's personal email account may be a cause for dismissal (Cass. soc., 9-11-2022, n°21-18.577)

An employee was summoned to a pre-dismissal meeting. Fearing the possibility of dismissal, he transferred 256 work emails to his personal email account. The employer dismissed him for gross misconduct on this basis.

The Court of Appeal considered that the dismissal was not justified because the documents "could have been necessary for the conduct of his defense."

The French Supreme Court disagreed and ruled in favor of the employer. The employee must establish that the documents in question "were strictly necessary for the conduct of his defense in the dispute in question". If he was not able to do so, the dismissal was valid.