Disciplinary Power and Union Discrimination: A Lesson from 1974 Still Relevant Today

Imagine: it is 1972, in a boiler-making factory in Lille. It is freezing cold in the workshops. The workers stop work to protest the lack of heating. Management orders everyone to leave the premises. But two employee representatives, members of the works council and the health and safety committee, refuse to leave: they believe their presence is necessary to maintain calm and inform management. The result? They receive a disciplinary warning. Unfair, isn't it? That is exactly what the Court of Cassation said in a landmark ruling of 6 November 1974. This decision, nearly 50 years old, remains an absolute reference for all employers, employees and employee representatives. It sets out a simple but often overlooked principle: disciplinary power must not be turned into a weapon of union discrimination.

But concretely, what are we talking about? When can an employer sanction an employee? And what are the rights of employee representatives, especially during collective disputes? I hear these questions every day in my practice, whether in Strasbourg, Haguenau or Sélestat. A landlord who evicts a tenant for requesting a repair, a company director who sanctions an overactive union delegate... The situations vary, but the law is clear: the sanction must not be a pretext to silence legitimate demands.

In this article, we will dissect this emblematic decision, understand exactly what it prohibits, and above all see how it applies today. Whether you are an employer, employee or employee representative, you will find keys to avoid the pitfalls of disciplinary power. And if you are in a similar situation, do not hesitate to consult a specialist lawyer: an initial analysis can often avoid months of proceedings.

The Facts: A Story That Happens Every Day

Let us go back in time. The company Fives Lille, a boiler-maker, experiences a particularly harsh winter in 1972. The workshops are poorly heated, the employees are shivering. After several complaints go unanswered, they decide to stop work in a concerted manner to protest. Management, exasperated, orders everyone to leave. But two employee representatives, members of the works council and the health and safety committee, refuse to leave. They believe their presence is necessary to maintain calm and negotiate with management. Two other representatives go to the labour inspectorate to report the situation. Upon their return, they inform their colleagues in a cloakroom, not in the workshops. Result: the first two representatives receive a warning for refusing to leave; the other two receive a warning for organising an unauthorised meeting.

The representatives challenge these sanctions before the employment tribunal. They claim they are discriminated against because of their union functions. The tribunal rules in their favour, annulling the warnings. Fives Lille appeals, but the Court of Appeal upholds the annulment. The case goes up to the Court of Cassation, which, in a decision of 6 November 1974, dismisses the employer's appeal and validates the reasoning of the lower courts.

What did the Court of Cassation hold? First, that the two representatives who remained in the workshops had a legitimate role: their presence was normal and likely to maintain calm. Second, that the two representatives who went to the labour inspectorate had not organised a meeting, but simply reported on their démarches in a cloakroom. Finally, that the employer, by sanctioning only the representatives and not the other employees, had engaged in discrimination, diverting its disciplinary power from its purpose.

In other words, just because an employee is a representative does not mean they are untouchable, but the employer cannot use discipline to hinder the exercise of union functions. An essential nuance.

The Reasoning of the Court — Analysed

In this decision, the Court of Cassation recalls a fundamental principle: the employer's disciplinary power exists, but it has limits. It cannot be used arbitrarily or discriminatorily. In this case, the Court notes that the employer sanctioned only the employee representatives, whereas other non-representative employees had also refused to leave. This is what is called union discrimination (unfavourable treatment based on union membership or the exercise of representative functions).

The legal basis? The former Article L. 412-2 of the Labour Code (now Articles L. 2141-5 et seq.), which prohibits any discrimination based on union membership. But also the principle of abuse of power: a power granted by law (here, disciplinary power) cannot be used for a purpose other than that for which it was conferred. Sanctioning an employee to prevent them from exercising their union functions is an abuse of power.

Note, however: the Court does not say that employee representatives are above the law. They must comply with the internal regulations and can be sanctioned for actual misconduct. But in this case, the representatives had committed no misconduct: their presence was legitimate, their information in the cloakroom was not a prohibited meeting. The sanction was therefore unjustified.

What few people know: this decision was rendered under legislation that was less protective than today. Yet the Court had already established solid safeguards. Today, the texts are even clearer: an employer who sanctions an employee representative without a genuine and serious ground is exposed to damages, or even nullity of the sanction.

In short, the judge always verifies whether the sanction is proportionate to the misconduct and whether it is not motivated by a discriminatory reason. This is a substantive review, not just a formal one.

What This Means for You — Concretely

So, how does this 1974 decision affect you today? If you are an employer, you must be extremely cautious before sanctioning an employee representative. Before issuing a warning or reprimand, ask yourself: would I have sanctioned a non-representative employee for the same facts? If the answer is no, you risk a finding of discrimination. In my practice, I have seen cases where an employer dismissed a union delegate for being 5 minutes late, while other employees received only a simple reminder. Result: dismissal annulled, reinstatement and €50,000 in damages.

If you are an employee representative or a union member, you should know that you benefit from enhanced protection. If you are sanctioned for exercising your functions, you can challenge the sanction before the employment tribunal. You can also claim damages for discrimination. Do not hesitate to keep all evidence: emails, testimonies, sanctions imposed on other employees for similar facts.

Let us take a concrete example: in Sélestat, an employee representative of a transport company was suspended for refusing to drive a lorry with defective brakes. He had alerted his employer in writing. The suspension was annulled because the refusal was legitimate and fell within his duty to report. The employer had to pay him 3 months' salary.

If you are a tenant or a landlord, the decision concerns you less directly, but it illustrates a general principle: the power to sanction (whether that of an employer or a landlord) must not be exercised abusively or discriminatorily. For example, a landlord who terminates a lease because a tenant requested urgent repairs could see the termination annulled for abuse of right.

Four Tips to Avoid This Type of Dispute

• Never sanction an employee representative without checking whether there is a genuine and serious ground. If the misconduct is related to the exercise of their functions (e.g., informing employees of a danger), the sanction will be void. Always seek a lawyer's advice before notifying a disciplinary sanction to a representative.
• Treat all employees equally for identical facts. Discrimination can be proven by comparison. If you sanction a delegate but not another employee for the same behaviour, you are at fault.
• Document the alleged facts precisely. A sanction must be based on objective and verifiable facts. A mere suspicion or rumour is not enough. Keep written evidence (emails, reports, testimonies).
• Comply with the disciplinary procedure laid down by the Labour Code and internal regulations. Summons, preliminary interview, written notification: each step is mandatory. A procedural defect can lead to the annulment of the sanction, even if the merits are justified.

Further Reading: Related Case Law and Developments

The 1974 decision is part of a protective line of case law on trade union rights. A few years later, in 1978, the Court of Cassation ruled that the dismissal of a union delegate for distributing union leaflets on company premises was void (Cass. soc., 25 Jan. 1978). More recently, in 2016, the Court recalled that mere union membership cannot justify a difference in treatment (Cass. soc., 30 Nov. 2016, No. 15-21.000).

The trend is clear: judges are increasingly vigilant about union discrimination. The legislature has strengthened sanctions: since the law of 17 August 2015, damages for union discrimination can reach up to 3 years' salary. The labour administration can also bring criminal proceedings.

Looking ahead, we can expect the protection of employee representatives to expand further, particularly with the development of remote work and new forms of work organisation. The right to disconnect, for example, could give rise to new disputes if an employer sanctions a representative who uses their digital tools to communicate with employees outside working hours.

Key Points to Remember

FAQ:

• Can I sanction a union delegate who refuses to perform a dangerous task? No, the right to refuse dangerous work is a right for all employees (Article L. 4131-1 of the Labour Code). Sanctioning a delegate for this would be discriminatory and the sanction would be void.
• What should I do if my employer sanctions me for exercising my union functions? You must challenge the sanction before the employment tribunal within 12 months of its notification. Gather all evidence (letters, testimonies, similar sanctions for other employees).
• Can an employer dismiss an employee representative? Yes, but only for gross or serious misconduct, and after authorisation from the labour inspectorate. Without authorisation, the dismissal is void.
• What are the risks for the employer in case of union discrimination? Annulment of the sanction, reinstatement of the employee, damages (up to 3 years' salary), and possible criminal proceedings (fine up to €3,750 for an individual, €18,750 for a legal entity).

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →