Cass. soc., 11 December 2024, 23-13.332, Published in the Bulletin
An employer gives a protected employee a five-day disciplinary suspension.
The protected employee brought an action before the industrial tribunal seeking the annulment of this sanction. The Court of Appeal found in his favour on the grounds that (i) no change to the employment contract or working conditions may be imposed on an employee; (ii) this disciplinary lay-off had the effect of changing the employee’s remuneration and working hours; (iii) consequently, the employer should have informed the employee in advance of his right to accept or refuse this sanction. In the absence of such information, the sanction is null and void.
This decision was overturned by the Cour de cassation, which stated that :
-Disciplinary dismissal does not entail any change in the employment contract or working conditions;
-Furthermore, disciplinary dismissal of a protected employee does not have the effect of suspending the performance of the employee’s duties;
-Consequently, disciplinary dismissal of a protected employee does not require the employee’s agreement.
This is the first time that the Court of Cassation has ruled on the nature of a disciplinary lay-off served on a protected employee. Prior to this decision, previous case law had suggested that a protected employee could object to such a sanction, which altered his working conditions (Cour de cassation, civil, Social Division, 23 June 1999, 97-41.121, published in the bulletin).
The Court of cassation has put an end to this uncertainty: protected employees are subject to disciplinary dismissal.