Fraudulent nature of a candidacy for professional elections

Court of cassation, Social Division, October 18, 2023, 22-11.339, Published in the bulletin

The employer is only entitled to allege the fraudulent nature of an employee’s candidacy before the industrial tribunal (CPH), in order to set aside the special protection of employee representatives, if he has contested the regularity of this candidacy before the judicial court (Tribunal Judiciaire) within 15 days of the election.

Our comment :

An employee who informs his employer of his intention to stand for election also benefits from special protection in terms of dismissal: Labor Inspection authorization is required to pronounce the dismissal, when the employee has proved that the employer was aware of the imminence of this candidacy before the summons to an interview prior to dismissal (L.2411-7 of the Labor Code).

• In this case, an employee informed his employer of his intention to run in the next professional elections 2 days before the pre-electoral agreement was signed. The following day, he received a summons to attend an interview prior to dismissal, and was dismissed for serious misconduct a few weeks later. At the end of the first round of professional elections, a notice of default was drawn up, due to a lack of candidates.

• The employee claimed that his dismissal should be invalidated, but was rejected by the Court of Appeal, which considered that his candidacy for the elections was fraudulent, since it had been proven that he had informed his employer of his intention to run in the professional elections with the only purpose of protecting himself from possible dismissal.

• The French Supreme Court (Cour de cassation) censured this decision: the employer was not entitled before the industrial tribunal to allege the fraudulent nature of the employee’s candidacy in order to set aside the special protection of employee representatives, since it had not contested the regularity of the employee’s candidacy before the judicial court within the legal time limit.

This is a confirmatory ruling (precedent: Cour de Cassation, Social Division, April 4, 2006, 04-42.898: concerning the fraudulent nature of an imminent candidacy; Cour de Cassation, civil, Social Division, May 13, 2014, 13-14.537, Published in the bulletin: concerning the fraudulent nature of a candidacy of which the employer had been informed by a trade union).

Once again, the French Supreme Court reiterates that – even if the employer considers the employee’s candidacy to be fraudulent, even if the employer is informed of this candidacy before the pre-electoral protocol agreement is signed, and even if the elections are unsuccessful due to a lack of candidacy – the employer cannot dismiss the employee without Labor Inspection authorization if he has not previously contested the employee’s candidacy before the judicial court, within the 15-day period following the elections.