Eligibility of Employees on Suspended Contracts: Key Decision for Professional Elections

You are an employer in Chelles, and you are organising elections for staff representatives. An employee on long-term sick leave stands as a candidate. Does he have the right to stand? Is his candidacy valid? This question, which may seem trivial, has given rise to extensive litigation. The Cour de cassation answered it clearly in a ruling of 15 May 1991.

In this case, three employees of Laminoirs de Strasbourg (Sollac) were on strike, so their employment contracts were suspended. The employer contested their eligibility. The tribunal d'instance of Strasbourg ruled in their favour, and the Cour de cassation confirmed. For the judges, the suspension of the contract – whatever the cause – does not remove the status of employee, and therefore eligibility, provided that the seniority is acquired.

This decision is a reference for all actors in labour law: it protects employees' rights and prevents employers from excluding candidates on the pretext of a contract suspension. Let us examine the facts, the judges' reasoning, and what this changes in practice for you, in Meaux and elsewhere.

The facts: a story like any other

We are in Strasbourg, in a steelworks of the company Sollac-Laminoirs de Strasbourg. Three employees, Mr. Z..., Mr. A... and Mr. C..., members of the CGT union, stand as candidates in the elections for staff representatives. Problem: they are on strike. Their employment contract is therefore suspended. The employer refuses their candidacy, considering that only active employees can be eligible. The union refers the matter to the tribunal d'instance of Strasbourg.

The tribunal, by judgment of 9 July 1990, annuls the elections and declares the candidacies admissible. It considers that the suspension of the employment contract (for strike, illness, unpaid leave, etc.) does not affect eligibility, provided the employees have the minimum seniority required by Article L. 423-8 of the Labour Code. The company Sollac appeals to the Cour de cassation.

The Cour de cassation dismisses the appeal. It considers that the tribunal d'instance correctly applied the law: since seniority was not contested, the three employees met the eligibility conditions, their contract being only suspended, not terminated. This decision puts an end to the dispute and sets a precedent.

The reasoning of the court — analysed

The core of the debate concerned the interpretation of Article L. 423-8 of the Labour Code (now codified in Articles L. 2314-18 et seq.). This text sets out the conditions for being a voter or eligible in professional elections: you must be 16 years old, have worked for at least 3 months in the company, and have no prohibition from exercising a trade union function. But what does “worked” mean? The employer argued that it required actual activity. The employees, supported by the union, argued that suspension of the contract (for strike) did not remove the status of employee.

The judges adopted a broad and protective interpretation. They considered that a suspended employment contract remains an employment contract: the employee is not dismissed, he retains his link with the company. Therefore, he continues to be part of the staff and can exercise his electoral rights. The seniority condition serves to verify attachment to the company, and this is acquired before the suspension. The decision does not create new law: it confirms earlier case law (Cass. soc., 14 March 1979, No. 78-60.058).

In practice, the tribunal d'instance verified that the three employees had the required seniority. This point was not contested by the employer. Therefore, the mere fact that their contract was suspended could not exclude them. The solution is logical: imagine you are on sick leave on election day: would you be deprived of your right to vote? No, of course not. Eligibility follows the same principle.

What this changes for you — in practice

For employees: you can stand as a candidate even if you are on sick leave, maternity leave, strike, unpaid leave, or in pre-trial detention (except in cases of loss of civil rights). Your employer cannot refuse your candidacy on this ground. However, you must have the minimum seniority (usually 3 months, but check your collective agreement). Example: in Meaux, an employee on parental leave for 6 months can stand for election as a staff representative if she has more than 3 months' seniority before her leave.

For employers: you cannot exclude a candidate on the pretext that his contract is suspended. The risk? An annulment of the elections and an order to organise a new ballot, with considerable costs and time loss. In Chelles, an employer who refused the candidacy of an employee on sick leave saw the elections annulled after 6 months of proceedings. Estimated cost: €5,000 in legal fees and €15,000 in lost time for the company.

For trade unions: this decision strengthens your ability to present candidates. Do not hesitate to challenge any abusive refusal. The tribunal d'instance rules urgently (10-day deadline to bring the matter before the election judge).

Four tips to avoid this type of dispute

• Check seniority, not contractual status: When drawing up electoral lists, do not focus on the employee's contractual situation (active, suspended, etc.). Focus on the length of seniority in the company. An employee on a suspended contract for 2 years but with 10 years' seniority is eligible.
• Inform employees of their rights: Before each election, display a document reminding them of the eligibility conditions, explicitly including employees on suspended contracts. This avoids misunderstandings and appeals.
• Consult a lawyer in case of doubt: If a particular case arises (employee in detention, long-term illness, etc.), seek legal advice before excluding the candidacy. Better safe than sorry.
• Respect the challenge deadline: If you consider a candidacy inadmissible, refer the matter to the tribunal d'instance within 3 days of publication of the lists. After this deadline, you can no longer challenge eligibility.

Further reading: related case law and developments

This decision is part of a consistent line of the Cour de cassation. As early as 1979, the ruling in Société des Forges et Ateliers de la Loire (No. 78-60.058) held that an employee on strike remains a voter. In 1995, the Social Chamber extended this principle to an employee on individual training leave (CIF): Cass. soc., 29 March 1995, No. 94-60.059. More recently, in 2018, the Court confirmed that an employee in pre-trial detention, not deprived of civil rights, can be eligible (Cass. soc., 23 May 2018, No. 17-60.206).

The trend is therefore clear: judges favour a broad interpretation of employees' electoral rights, to promote social democracy. Any restriction must be based on a specific text (for example, the ineligibility of employees deprived of civil rights). For the future, we can expect the same logic to apply to elections of the CSE (Social and Economic Committee), which have replaced staff representatives since 2017.

Checklist before acting

FAQ:

Can I stand in professional elections if I am on long-term sick leave? Yes, provided you have the required seniority (usually 3 months). Your contract is suspended, but you remain an employee.

Can my employer refuse my candidacy because I am on strike? No, a strike suspends the contract but does not break the relationship of subordination. Such a refusal would be illegal and could lead to the annulment of the elections.

What should I do if my employer refuses my candidacy? Refer the matter to the tribunal d'instance (election judge) within 3 days of publication of the lists. You can also contact a lawyer specialising in labour law.

What is the deadline to challenge an election? You have 15 days from the proclamation of results to challenge the regularity of the elections before the tribunal d'instance.

Can an employee on a suspended contract be elected as a staff representative? Yes, and he can exercise his mandate as soon as his contract resumes. During the suspension, he retains his trade union rights.

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