Employment Tribunal Jurisdiction: Can an Employee Refuse a Transfer to a Public Body?

Imagine for a moment: you have worked for years for the same employer, the Institut d'aménagement et d'urbanisme de la région parisienne (IAURP). One day, you are told that you will be transferred to the établissement public d'aménagement de la ville nouvelle de Melun-Sénart (EPAMelun-Sénart). You flatly refuse. You consider your employment contract terminated and claim damages from both entities. But before which court should you bring your case? The employment tribunal or the administrative court? This question, simple on the surface, gave rise to a legal saga that went all the way to the Tribunal of Conflicts.

In Fleury-les-Aubrais or Pithiviers, this kind of situation may seem distant. Yet many employees in the public or para-public sector face forced transfers, activity transfers, or changes of employer without consent. The issue of jurisdiction is crucial: it determines the time, cost, and chances of success of your action. The decision handed down by the Court of Cassation on 22 July 1980 (No. 77-41.640) provides a clear answer: when the public establishment has an industrial and commercial character, the employment judge has jurisdiction. But what exactly does that change for you, employee or employer? Let's break it down.

This decision, though dated, remains a reference. It illustrates a fundamental principle of labour law: Article L. 122-12 of the Labour Code (now L. 1224-1) which provides for the continuation of employment contracts in the event of a change in the legal situation of the employer. But it also sets a limit: the new employer must still be subject to private law. In other words, if you are transferred to an administrative public entity, it is not the employment tribunal that has jurisdiction, but the administrative court. A detail that can change everything. Let's look at the facts closely.

The Facts: A Story Like Many Others

Mr. Michel, an employee of the Institut d'aménagement et d'urbanisme de la région parisienne (IAURP), is seconded to the mission d'aménagement de la ville nouvelle de Melun-Sénart. This is a common practice in large urban planning projects: IAURP designs, the mission executes. But in 1975, the mission is replaced by a public development establishment (EPAMelun-Sénart). Management then proposes that Mr. Michel transfer to this new EPIC (industrial and commercial public establishment). He refuses. For him, his employment contract with IAURP is terminated as a result of this imposed transfer. He therefore sues both entities before the employment tribunal of Melun, claiming damages for unfair dismissal.

The employment tribunal declares itself competent to hear the claims against IAURP (a private law entity), but incompetent for those against EPAMelun-Sénart, considering it a public law legal person subject to the administrative judge. The Paris Court of Appeal upholds this distinction. Dissatisfied, Mr. Michel appeals to the Court of Cassation. The Court of Cassation, uncertain about the exact nature of EPAMelun-Sénart, refers the matter to the Tribunal of Conflicts. By a decision of 14 May 1979, the Tribunal qualifies EPAMelun-Sénart as an industrial and commercial establishment. Consequently, the Court of Cassation, in its judgment of 22 July 1980, quashes the appeal judgment: the employment tribunal has jurisdiction over the entire dispute, including against the EPIC.

What is striking in this case is the time and procedural complexity. From the refusal of the transfer to the final judgment, nearly five years elapsed. And it all turns on an apparently technical point of law: the qualification of the employer. How many employees today find themselves in a similar situation without knowing which door to knock on? In Pithiviers, an agent of a mixed economy company transferred to a joint syndicate could experience exactly the same uncertainty. Hence the importance of knowing this case law.

The Reasoning of the Court — Analysed

The heart of the reasoning is in one sentence: "Whereas the Tribunal of Conflicts qualified the public development establishment of the new town of Melun-Sénart as an industrial and commercial establishment." Once this qualification is established, everything follows. Indeed, Article L. 122-12 of the Labour Code (old, now L. 1224-1) provides that "if a change occurs in the legal situation of the employer, particularly by succession, sale, merger, transformation of the business, incorporation, all employment contracts in force on the date of the change continue between the new employer and the company's personnel." This text applies to private employers, but also to industrial and commercial public establishments (EPICs), because they are subject to private law in their relations with their employees.

The judges of the Court of Cassation deduce that the employment tribunal, competent for individual labour disputes between employees and private law employers, is also competent to hear claims against an EPIC. The Court of Appeal was therefore wrong to declare itself incompetent in respect of EPAMelun-Sénart. In short, once the public establishment is qualified as industrial and commercial, labour disputes fall within the jurisdiction of the employment judge, not the administrative judge.

But beware: this solution is not automatic for all public establishments. If the establishment is administrative (EPA), the administrative court has jurisdiction. What few people know is that the boundary between EPIC and EPA is sometimes blurred. The Tribunal of Conflicts had to rule on a preliminary question. undefined that if you are an employee transferred to a public establishment, you must first check its legal nature. undefined, I have encountered cases where employees of the Office public de l'habitat (OPH) — an EPIC — were able to go to the employment tribunal, while agents of an intercommunal syndicate (EPA) had to go to the administrative court. The difference in procedure is considerable: longer timeframes, sometimes mandatory representation by a lawyer, etc.

The 1980 decision therefore has an immediate practical impact: it simplifies the employee's path when dealing with an EPIC. But it does not solve everything. How do you know if your new employer is an EPIC or an EPA? You need to consult the texts that create it. Generally, public development establishments (like EPA, EPAM) are EPICs. But there are exceptions. The best reflex: seek advice from a lawyer lawyer before taking action.

What This Means for You — Practically

For an employee, this decision means you can go to the employment tribunal if your employer is an EPIC. This is an advantage: the employment tribunal procedure is free, without mandatory representation, and generally faster than the administrative procedure. If you are in Pithiviers, for example, and you work for a local public company (SPL) that manages an industrial and commercial public service, you are at an EPIC. In case of a dispute over your transfer, you will go to the employment tribunal of Orléans.

For an employer (public establishment), this decision clarifies its obligations. If it is an EPIC, it must comply with private labour law: dismissal procedure, severance pay, etc. It cannot hide behind administrative law to limit its employees' rights. Concretely, if you are the director of an EPIC like a social housing office, you must apply the rules of the Labour Code. An error on this point can be costly: for example, a dismissal without a preliminary interview can be reclassified as unfair dismissal, with compensation of up to several months' salary (up to 20 months for 30 years of service, according to the Macron scale).

For a property owner or co-owner, you are not directly affected by this decision, but it can have indirect consequences. For example, if you sell a property to an EPIC (like a local authority buying a building to convert it into social housing), the employees of that EPIC benefit from private law protection. In case of a dispute with your buyer, this can affect payment deadlines or completion of work. But rest assured, this is quite rare.

Finally, for a real estate professional (agent, notary, developer), this decision reminds you that EPICs are economic actors like any other in labour law. If you advise a developer who hires employees through a public structure, check the nature of the employer. A wrong direction can lead to procedural errors.

Four Tips to Avoid This Type of Dispute

• Check the legal nature of your employer before accepting a transfer. Ask for the articles of incorporation or the decree of creation. If it is an EPIC, you are in private law. If it is an EPA, you fall under public law. If in doubt, consult a lawyer labour lawyer.
• Insist on a written amendment to your employment contract in case of transfer. Article L. 1224-1 provides for the continuation of the contract, but nothing prevents formalising the new conditions. An amendment signed by both parties avoids later disputes.
• If you refuse a transfer, put your employer on notice by registered letter with acknowledgement of receipt. Clearly explain the reasons for your refusal and request the maintenance of your original contract. Keep a copy of all correspondence.
• Do not delay in acting. The limitation period for bringing a claim before the employment tribunal is 2 years from the termination of the contract (or from knowledge of the facts). After this period, you lose all rights. If you are in Fleury-les-Aubrais, the competent employment tribunal is that of Orléans. Do not wait.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line of the Court of Cassation. One can cite a judgment of 8 July 2009 (No. 08-40.533) which recalls that EPICs are subject to private law for their individual labour relations, unless their staff is subject to a special status (like civil servants). More recently, a judgment of 27 January 2021 (No. 19-20.390) confirmed that employees of a mixed economy company (SEM) are indeed within the jurisdiction of the employment tribunal, even if the SEM exercises a public service mission.

The trend is therefore towards unification: as long as the activity is industrial or commercial, the employment judge has jurisdiction, regardless of the public status of the employer. This simplifies employees' lives and avoids referrals between courts. However, there are exceptions for staff subject to a public law status (such as public law contract agents). The boundary remains delicate to draw, and each case deserves a case-by-case analysis.

For the future, one can expect that the EPIC/EPA distinction will continue to play a key role. With the multiplication of hybrid public structures (GIP, SPL, etc.), legal qualification becomes a major issue. The courts may need to clarify the qualification criteria. In the meantime, the 1980 decision remains a reliable compass.

Key Points to Remember

• What is an EPIC? An industrial and commercial public establishment, such as a transport authority, a social housing office, or a public development establishment. It is subject to private law for its labour relations.
• Which court should I go to if my employer is an EPIC? The employment tribunal, regardless of the amount of the dispute.
• What if my employer is an EPA? Go to the administrative court (administrative court of your region).
• Can I refuse a transfer to an EPIC? Yes, but it may lead to termination of your contract. You can then claim damages if you consider the transfer was imposed without legitimate reason.
• What are the time limits for action? 2 years from the termination of the contract or from knowledge of the facts. After this period, the claim is time-barred.

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