Strike in the Public Service: Absence of Strikers Does Not End the Notice Period

Imagine: you are the owner of a building in Antibes, and the caretaker, a municipal employee, stops work after a strike notice filed by his union. After a few days, no one is on strike anymore. You think everything is back to normal, and you ask him to resume his duties. But the union has not formalised the end of the strike. What happens if the employer acts as if the strike is over? This decision of the Court of Cassation of 8 December 2016 answers precisely this question: the absence of strikers is not enough to end the strike notice.

But what exactly does this change? A lot for public employers and users. The high court recalls a fundamental principle: the right to strike is an individual right, but the notice is a union prerogative. As long as the union has not withdrawn the notice, it remains valid, even if no employee is on strike.

What few people know is that this decision protects employees from undue pressure, but also imposes rigorous management on employers. Let's look at the facts, the reasoning of the judges, and especially what you should do if you are concerned.

The Facts: A Story That Happens Every Day

The case begins in a local authority, which we will call the town of Le Cannet for the sake of example. A representative union files an indefinite strike notice on 14 December 2012, to protest against a reorganisation plan. For a few days, some employees stop work. But quickly, the movement fizzles out: by 11 January, no employee is on strike. The employer, thinking the strike is over, asks the employees to return to their posts and considers any further absence unjustified.

The union then takes the case to the Tribunal de Grande Instance (TGI) to have it recognised that the notice has not been lifted. The TGI rules in favour of the union and orders the employer to lift the notice under a penalty of €75 per day of delay. The employer challenges this and takes the case to the Court of Cassation.

The debate centres on a simple question: who decides the end of a strike notice? The employer, by noting the absence of strikers? Or the union, as the sole issuer of the notice? The lower courts had ruled in favour of the union. The Court of Cassation had to confirm or reverse this.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article L. 521-3 of the Labour Code (now codified in Article L. 1132-1 for public services) which provides that in public services, a strike must be preceded by a notice from a representative trade union. This notice must state the reasons and the duration (start and end time).

But above all, the Court recalls an essential point: the right to strike is an individual right, while the strike notice is a collective act emanating from the union. Consequently, the mere observation of the absence of striking employees does not allow the employer to deduce that the strike is over. Only the union that issued the notice can end it, by an explicit decision (withdrawal of the notice) or implicit (filing of a new notice).

In clear terms, even if no one is on strike anymore, the notice remains in force until the union decides to withdraw it. The employer cannot therefore unilaterally consider the strike over and demand a return to work. If he does so, he commits a fault and may be ordered to pay damages.

This decision is a confirmation of previous case law (notably Cass. soc., 13 July 2004, No. 02-30.210). There is no reversal: the Court maintains a protective line for the right to strike.

In other words, the employer must wait for the union to lift the notice. If he notes an absence of strikers, he can ask the union to confirm the end of the strike, but he cannot impose this end.

What This Changes for You — Concretely

This decision has direct implications for several actors.

For public employers (town halls, hospitals, etc.): You cannot presume the end of a strike. Even if no employee is on strike for several days, the notice remains valid. In practice, if you ask an employee to resume work and they refuse on the grounds of the notice, you cannot sanction them. You must either contact the union to obtain an official lifting, or wait for the expiry of the notice (if it has a fixed duration).

For striking employees: You can stop striking at any time, individually. But if the notice is still in force, you can also return to the strike without a new notice. Caution: if the employer asks you to resume work, you are not obliged to obey as long as the notice has not been lifted.

For users and owners: If you are waiting for a public service (refuse collection, caretaking, etc.) and a strike is announced, even if it seems over, it can resume at any time. A concrete example: in Le Cannet, if the road maintenance service is on indefinite strike, and no employee is on strike for two weeks, the town hall cannot hire temporary staff considering the strike over. It must first obtain the lifting of the notice.

undefined, I have come across cases where employers sanctioned employees for unjustified absence, even though the strike notice had not been lifted. Result: the employment tribunal ordered the employer to pay damages.

Four Tips to Avoid This Type of Dispute

• For the employer: never presume the end of a strike. As soon as a notice is filed, keep a register of strikers and days. Systematically contact the union that issued the notice to find out the status of the movement and ask for written confirmation of the end of the strike.
• For the union: formalise the end of the strike. When the movement fizzles out, send an official letter to the employer to lift the notice. This avoids any ambiguity and protects employees.
• For the employee: keep evidence. If you are on strike, keep a copy of the notice and note the dates of your work stoppage. If the employer challenges you, you can prove that you were acting within the scope of the notice.
• For the user: be patient. In case of a strike, know that even if the service seems to return to normal, the notice may still be active. Do not be surprised by a sudden resumption.

Further Analysis: Related Case Law and Developments

This decision is part of a consistent line of the Social Chamber of the Court of Cassation. Already in a judgment of 13 July 2004 (No. 02-30.210), the Court had ruled that the absence of strikers does not end the notice. More recently, a judgment of 20 December 2017 (No. 16-21.323) clarified that even in the case of an indefinite notice, the employer cannot unilaterally determine the end of the strike.

The trend is therefore clear: the judges protect the collective dimension of the notice. This means that employers must be particularly vigilant. In the future, we might see the emergence of good faith obligations in the management of notices, for example, an obligation for the union to respond quickly to an employer's request.

Frequently Asked Questions

Can an employer ask an employee to resume work if no striker is present? No, as long as the notice has not been lifted by the union. The employee can refuse and cannot be sanctioned.

What if the union does not respond to the employer's requests? The employer can apply to the interim relief judge to have the end of the strike declared, but this remains risky. It is better to negotiate.

Does this rule apply to strikes in the private sector? No, in the private sector, there is no obligation to give notice (except in certain collective agreements). Each employee can strike freely, and the employer can determine the end of the strike.

What are the time limits for challenging an employer's decision? The employee has 5 years to bring an action before the employment tribunal. But in practice, it is advisable to act quickly.

Can a strike notice be indefinite? Yes, the law does not impose a maximum duration. But the notice must state a duration, even if indefinite.

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