Union discrimination can be characterized by an employer’s lack of effective response to an employee’s request to return to his job after a union detachment

Cass. Soc., January 31, 2024, 22-22.404

An employee has held various representative mandates since 2003. In early 2016, he was detached to a trade union on a part-time basis, but in February 2016 asked to return to his job on a full-time basis.

On January 20, 2017, he brought an action before the industrial tribunal seeking recognition that he had been discriminated because of his trade union activities, and claiming damages for loss of earnings, loss of pension rights and moral prejudice. To demonstrate this discrimination, he highlighted the fact that:

• He has not received a pay rise since 2004;
• His salary is lower than the salaries of employees in his category;
• He has been stuck in grade 12 for 18 years (from 1996 to 2014);
• Unlike what a collective agreement in force within the company provides, he did not benefit from the annual evaluation interviews or the interview that should automatically be offered if there is no individual raise for three consecutive years;
• The employer did not react effectively when his union detachment ended, and he requested to resume his job on a full-time basis.

The Paris Court of Appeal (Cour d’appel, Paris, Pôle 6, chambre 4, 14 Septembre 2022 – n° 19/09524) considered that the following elements did not constitute union discrimination:

• The lack of a salary increase since 2004: as no employee of the company had received an increase between 2005 and 2017;
• The fact that his salary was lower than the salaries of employees in his category: because the employee did not justify the experience, training, and profile of the employees he was comparing himself to;
• The fact that he was stuck in class 12 for 18 years (from 1996 to 2014): because he was promoted to class 13 in 2014.
• The fact that he did not benefit from the interviews provided for in the collective agreement: because the employee did not demonstrate that he had asked to benefit from these interviews, nor did he establish that his colleagues had been treated differently.

Accordingly, the Court of Appeal dismissed the employee’s claim for damages to compensate for the loss of earnings and the loss of pension rights he claimed to have suffered.

However, the Paris Court of Appeal considered that the employer’s lack of effective response when the employee requested to resume his job at the end of his union detachment did indeed constitute union discrimination: specifically, the employer, while having offered several meetings to the employee via email, did not demonstrate having made a concrete offer for the employee’s return to the company on a full-time basis.

As a result, the court of appeal ordered the employer to pay damages to the employee, but only for the alleged moral injury (amounting to 3.000€, against 20.000€ requested for moral injury and approximately 14.000€ requested for salary and pension loss).

The employee appealed this decision to the Court of Cassation. This appeal was rejected by the Court of Cassation, which confirmed the appellate judge’s solution by stating in its reasons that ” The Court of Appeal, without disregarding the rules of evidence, held that, of the elements cited by the employee, only the lack of effective reaction from the employer to his request to resume his job after a union detachment suggested discrimination, and found that the employer did not demonstrate that this situation was justified by objective factors unrelated to any discrimination, thereby deducing the existence of union discrimination causing only moral damage to the employee, the amount of which it sovereignly assessed.”

This ruling, read in light of the appellate decision, guides employers in the case of a union detachment of one of their employees. When this specific period ends, the employer must:

• Either make concrete proposals to enable the employee to return to work,
• Or justify its failure to make concrete proposals by objective elements unrelated to any discrimination.

The decision of the Paris Court of Appeal also deserves our attention: it provides a concrete illustration of the objective elements that can be invoked by the employer to justify the absence of salary discrimination due to union activities.