Strike in public services: can a single employee be dismissed? The answer from the Court of Cassation

Imagine yourself in Mimizan, on an April morning in 2022. You own a shop on Avenue de la Plage, and you rely on the bus for your employees to arrive on time. But that day, the service is disrupted: only one driver has stopped work. As a boss, you might think: "A single employee on strike, that's not serious, I can dismiss him for gross misconduct". But is that really legal?

This question, which seems technical, actually affects thousands of everyday situations in public services. Whether in transport, energy, or local authorities, the right to strike is a delicate balance between protecting employees and maintaining service continuity. And in the jurisdiction of Mont-de-Marsan, where public services are essential for towns like Tarnos or Mimizan, this question takes on a very concrete dimension.

The Court of Cassation, in a decision of 21 April 2022, provides a clear answer that goes against some intuitions. It recalls fundamental principles, but in a context where only one employee is on strike. But what exactly does this change for employers, employees, and more broadly for all those who depend on these services?

The facts: a story that happens every day

The story begins on 16 April 2015, in a public transport company. The CGT CIF Keolis trade union, a representative trade union (i.e., recognised as legitimate to negotiate), files a strike notice. This notice, which is a formal warning given to the employer, runs from 22 April 2015 to a later date. It precisely mentions the start and end time of the planned work stoppage, as required by law for public services.

On 22 April, in a branch of this company, a single employee, whom we will call Mr Martin, stops work. He acts to support professional demands formulated within the framework of the trade union notice. During the period covered by this notice, Mr Martin remains absent from the company, despite a formal demand from his employer to return to work.

The employer, considering that this unjustified absence constitutes gross misconduct, dismisses Mr Martin. The reason given? Since he was the only one on strike, and he remained absent despite the order to return, he could not claim the status of a protected striker. In short, the employer thought that a strike, to be valid, required collective participation, and that an isolated employee could be sanctioned.

Mr Martin challenges this dismissal before the industrial tribunal (the specialised court in employment law), then on appeal. The court of appeal validates the dismissal for gross misconduct, considering that Mr Martin did not have the status of a striker. But Mr Martin does not give up and files an appeal to the Court of Cassation, asking the highest judicial court to verify whether the law was correctly applied. This is where the Court of Cassation intervenes, with its decision of 21 April 2022.

The court's reasoning — dissected

The Court of Cassation, in its judgment, first recalls consistent case law (i.e., a series of previous decisions going in the same direction). It cites in particular judgments from 2012, 2015, and 2016. According to this case law, in public services, a strike must be preceded by a notice given by a representative trade union. To be regular, this notice must mention the start and end time of the work stoppage.

But here is the crucial point: employees, who are the sole holders of the right to strike (i.e., this right belongs to them individually), are not required to stop work for the entire duration indicated by the notice. In other words, even if the notice covers several days, an employee can choose to strike only for a few hours, or one day, without invalidating their action.

The Court deduces two major consequences. First, the employer cannot, during the period defined by the notice, conclude from the mere observation of the absence of striking employees that the strike is over. This decision can only be taken by the representative trade union(s) that filed the notice. Second, the cessation of work by an employee to support professional demands formulated within the framework of such a notice constitutes a strike, regardless of the fact that only one employee declared themselves a striker.

In this case, the court of appeal had violated several texts: Articles L. 2511-1, L. 2512-1, L. 2512-2 of the Labour Code (which regulate the right to strike in public services), and paragraph 7 of the Preamble to the Constitution of 27 October 1946 (which recognises the right to strike). It had wrongly considered that Mr Martin, because he was alone in ceasing work, could not benefit from the protection afforded to strikers. The Court of Cassation therefore quashes this judgment, meaning that the dismissal for gross misconduct was not justified.

This reasoning confirms established case law: it is not an evolution or a reversal, but a firm reminder of the principles. The employer's arguments, based on the idea of a necessity for collective participation, are rejected in favour of the individual protection of the right to strike.

What this changes for you — concretely

If you are an employer in a public service, for example in Tarnos in a waste management or local transport company, this decision has direct implications. You cannot dismiss an employee for gross misconduct simply because they are the only one on strike within the framework of a regular trade union notice. Even if they remain absent despite a formal demand, during the period covered by the notice, their action is protected. Be careful, however: this does not mean that anything goes. If the employee commits distinct faults (such as violence or misappropriation), dismissal may be justified, but not on the basis of the strike itself.

For employees, this decision strengthens their security. Imagine a teacher in Mimizan who wishes to support a national strike in education. Even if their colleagues do not follow, they can stop work without fearing unfair dismissal, provided that the notice was filed by a representative trade union. This protects their freedom of collective action, even when exercised individually.

For users or owners who depend on these services, like a shopkeeper in Mimizan whose supply is disrupted, this means that disruptions can occur even with limited participation. But what few people know is that this protection aims to preserve the balance of social negotiations. undefined, I have encountered cases where employers tried to deter strikes by threatening isolated employees; this decision puts a brake on these practices.

Concretely, if you are in this situation as an employer, you must: verify the regularity of the strike notice (representative trade union, hours mentioned), not hastily conclude that the strike is over, and avoid sanctions based solely on individual participation. For an employee, ensure that your action falls within a valid notice, and keep evidence of your participation in the strike. The time limits for challenging a dismissal are generally 12 months after notification, and damages for unfair dismissal can reach several months' salary, depending on seniority.

Four tips to avoid this type of dispute

• Systematically verify the regularity of the strike notice: Before any action, as an employer, check that the notice comes from a representative trade union in your company, and that it clearly mentions the start and end dates and times. This will avoid subsequent disputes about the validity of the strike.
• Document absences and communications precisely: Note the names of striking employees, the hours of absence, and keep written exchanges (formal demands, responses). In a dispute, this evidence will be crucial to establish the facts, as in the Mimizan case where the employer had misinterpreted the absences.
• Do not presume the end of the strike: Even if no employee seems to be on strike at a given time, wait until the end of the period covered by the notice or a formal announcement from the trade union before considering that the conflict is over. This prevents errors of unfair dismissal.
• Consult a specialised lawyer before any disciplinary sanction: If you are considering a dismissal related to a strike, obtain legal advice to assess whether the fault is sufficiently serious and distinct from the exercise of the right to strike. This can avoid costly and lengthy procedures.

Deep dive: related case law and developments

This decision fits into a stable line of case law. For example, in the Court of Cassation judgment of 4 July 2012 (appeal no. 11-18.404), the court had already affirmed that employees are not required to stop work for the entire duration of the notice. Similarly, the judgment of 11 February 2015 (appeal no. 13-14.607) reinforced this individual protection.

There are no major recent divergent decisions on this point, which indicates a clear trend of courts protecting the right to strike, even when exercised in an isolated manner, within the framework of public services. This approach aims to guarantee the effectiveness of collective actions, by preventing employers from targeting minority participants.

For the future, this means that employers will have to continue to scrupulously respect these rules, at the risk of seeing their sanctions annulled. Trade unions, for their part, can rely on this case law to mobilise their members safely. In the jurisdiction of Mont-de-Marsan, where public services are often at the heart of the local economy, this legal stability is reassuring for all actors.

Summary and next steps

Here is a checklist of what to remember if you are faced with a similar situation:

1. Check the notice: Is it filed by a representative trade union? Does it mention the start and end times?
2. Identify the covered period: Does the strike occur during this period? Do not presume its end before its term.
3. Assess the employee's action: Do they stop work to support professional demands within this framework? If yes, it is a protected strike.
4. Avoid sanctions based on solitude: A single employee on strike cannot be dismissed for that; look for any distinct faults.
5. Consult a professional: In case of doubt, seek advice from an employment law lawyer to avoid costly errors.

How to react if you are an employee and your employer threatens you? Document everything, and do not hesitate to contact your trade union or a lawyer to defend your rights.

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