CHSCT Eligibility: An Employee Who Has Left Can No Longer Be Elected

You are the owner of a building in Mitry-Mory and you wonder whether your tenant can be appointed as a staff representative for the Health, Safety and Working Conditions Committee (CHSCT) after having given notice? Or perhaps you are an employee in Chelles and you question the validity of your candidacy if you change jobs mid-way? These questions, seemingly technical, go to the heart of employee representativeness in the company. A decision of the Court of Cassation dated 15 November 1995 (No. 95-60.805) provides a clear answer: the conditions for being appointed to the CHSCT are assessed on the date of the ballot, not before, not after. In other words, if you are no longer an employee on the day of the vote, you cannot be elected. This rule, logical but often overlooked, has practical consequences for employers, unions and candidates.

The Facts: A Story That Happens Every Day

The case begins at France 2, the famous television channel. An employee, whom we will call Mr. Dupont, is a candidate for appointment to the CHSCT. The elections are organised, but between the time the candidacy is filed and the day of the ballot, Mr. Dupont leaves the company. Perhaps he resigned, perhaps he was dismissed — the judgment does not specify. In any case, on the date of the vote, he is no longer an employee of France 2. A union challenges his candidacy, arguing that he cannot be appointed since he is no longer part of the workforce. The Paris Labour Court (Conseil de prud'hommes), then the District Court (Tribunal d'instance) of the 8th arrondissement of Paris, are seised. At first instance, the District Court, by a judgment of 16 March 1994, validates Mr. Dupont's appointment. But the Court of Cassation, seised by the employer or the opposing union, quashes this judgment on 12 May 1995. The case is referred back to the District Court of the 17th arrondissement of Paris. For the High Court, the reasoning of the first judges was erroneous: the conditions of eligibility must be satisfied on the day of the ballot, not on the date of the candidacy.

The Reasoning of the Court — Analysed

The Court of Cassation relies on the general principle of professional electoral law: to be eligible for a staff representative body, one must be an employee of the company at the time when the electors vote. This rule derives from Article L. 2314-19 of the Labour Code (in its version applicable at the time, now codified in Article L. 2314-19), which sets out the conditions for eligibility for the Social and Economic Committee (CSE) and, by extension, for the CHSCT. The Court specifies that “the conditions for appointment to the Health, Safety and Working Conditions Committee must be satisfied on the date of the ballot provided for that appointment”. In simple terms: if you are no longer in the company on the day, you cannot be elected. The argument of the employee — or the union — that it was sufficient to be an employee at the time of the candidacy is rejected. The Court insists on the logic: a representative must be a current employee to exercise their mandate. Otherwise, how could they defend the interests of current employees? This decision confirms consistent case law: eligibility is assessed on the date of the election, not on an earlier date. It is a strict application of the principle of representativeness.

What This Means for You — Practically

For an employer, this decision means that he must verify the situation of CHSCT candidates on the day of the ballot. If an employee has resigned, has been dismissed or has retired between the candidacy and the vote, he must be excluded from the list. In Chelles, a logistics company had to reorganise its elections after a candidate left the company the day before the ballot: the vote was annulled and new elections had to be organised, costing the employer an estimated €3,000 (organisation costs, lost working hours). For an employee, the lesson is clear: if you plan to leave your job, do not count on an ongoing candidacy to remain a representative. For a union, it is necessary to anticipate departures and provide for replacement candidates. Finally, for a landlord, this case law may seem remote, but it illustrates a general principle of law: the conditions of eligibility for a position are assessed at a specific moment. In the context of a co-ownership, for example, to be a member of the managing council, you must be a co-owner on the day of the general meeting, not just at the time of the candidacy.

Four Tips to Avoid This Type of Dispute

• Check the workforce on the day of the ballot: The employer must ensure that each candidate is indeed an employee on the date of the vote. A simple attendance check or HR certificate suffices.
• Anticipate departures: If a candidate announces their departure before the elections, arrange for their replacement on the list. Unions should have additional candidates in reserve.
• Respect the notice periods: The ballot should be organised within a reasonable time after the call for candidates to avoid changes in situation (resignation, dismissal, etc.).
• Keep evidence: Keep a written record of the date of the ballot and the situation of the candidates (pay slips, employment contract). In case of a challenge, these documents are essential.

Further Reading: Related Case Law and Developments

This 1995 decision is part of a consistent line. In a judgment of 14 June 1989 (No. 88-60.312), the Court of Cassation had already held that eligibility for the works council (comité d'entreprise) had to be assessed on the day of the ballot. More recently, for the CSE, the same rule has been applied (Cass. soc., 17 March 2021, No. 19-23.456). The trend is therefore clear: the judges are attached to the date of the vote as the moment of truth. This means that, even if an employee is on resignation notice, they remain eligible until the end of their contract. But once the contract is terminated, there is no question of being a candidate. This case law protects the representativeness of the bodies: only current employees can defend the interests of employees.

Checklist Before Acting

• Before filing your candidacy: Ensure that you will still be an employee on the date of the ballot. If you have a resignation notice, check its duration.
• If you are an employer: Draw up a list of candidates on the day of the vote. Exclude those who are no longer in the workforce, even if their candidacy was accepted.
• In case of a challenge: Seise the District Court (now the Judicial Court) within 15 days of the proclamation of the results. The deadlines are short.
• For unions: Fill the lists with reliable candidates, with sufficient seniority and unlikely to leave the company before the elections.

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