France: A Court of Appeals Decision Provides Helpful Guidance Regarding an Employer’s Obligations When Consulting with Employee Representative Bodies

by Dechert LLP
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Before agreeing and executing a business sale involving a transfer of a business, an international publishing company (Wolters Kluwer) consulted its works council. The works council refused to deliver its opinion and issued court proceedings seeking to require the employer to restart the consultation process, even though in the meantime the sale had been implemented.

The court looked at various aspects of the consultation process.

The court was satisfied with the number of meetings with the works council (seven), as well as the number of documents delivered by the employer. It decided that there was no need to provide an additional document summarizing the project, its social, financial and economic consequences, and taking into account the changes that occurred during the course of the consultation process. The court ruled that it was for the employee representatives to make such a synthesis, with the assistance of an expert as the case may be.

The court also rejected the works council’s application for the employer to restart the consultation process. As the transaction had been completed, this was no longer possible.

However, the employer was held liable for not properly consulting its works council because it did not deliver appropriate information to the employee representatives. The employer provided documentation in English and only provided French translations of a limited number or certain parts of the English documentation. As a result, the works council was prevented from reviewing the information delivered, especially in view of the short time available before the day on which their opinion was sought.

For not providing full translation into French of the English documentation, the employer was ordered to pay 8,000 € in damages and 5,000 € in legal costs to the works council.

Whilst the damages and costs of 8,000 € may well be less than the actual cost of translation, employers should be aware that failure to properly consult its employee representatives is a criminal offence in France, and that success before a civil court such as this one can potentially lead to a straightforward conviction in the criminal courts. (Versailles Court of Appeals – 19 March 2014, n°13/05954)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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