Reference Decision: cc • No. 16-12.221 • 2017-06-01 • View decision →
Imagine: you own a small building in Mougins, and you hire a caretaker to maintain the common areas. This caretaker is also a municipal councillor. One day, you decide to dismiss him for gross misconduct. But then he turns against you, claiming that he benefited from special protection because of his elective mandate, and that you did not follow the procedure. You thought you were within your rights, but the court rules against you. How to avoid this trap?
This question, which seems reserved for traditional employment relationships, can actually concern any employer, including property managers or individual employers. The decision of the Court of Cassation of 1 June 2017 (No. 16-12.221) provides a clear answer: it is for the employee who invokes protection (for example, as a labour court councillor, trade union delegate, or local elected official) to prove that they informed the liquidator of the company – or the employer – of the existence of this mandate before the termination.
In short, if you are an employer, you are not required to guess that your employee benefits from protection. But be careful: if the employee proves that they informed you, you must follow a specific procedure (authorisation from the labour inspectorate). This decision is crucial for landlord owners, co-ownerships, and real estate professionals who employ staff.
The Facts: A Story That Happens Every Day
Mr X, owner of a villa in Valbonne, hired Mrs Y as a cleaner in 2010. Mrs Y was also a labour court councillor (external mandate). In 2014, Mr X decided to dismiss her for economic reasons due to financial difficulties. He summoned Mrs Y to a preliminary interview, then notified her of her dismissal. Mrs Y contested the termination, arguing that her mandate as a labour court councillor gave her special protection, and that Mr X should have sought authorisation from the labour inspectorate.
Mr X, for his part, claimed he was unaware of this mandate. Mrs Y maintained that she had informed him verbally during the preliminary interview. The Labour Court of Grasse ruled in her favour, ordering Mr X to pay damages. Mr X appealed, then appealed to the Court of Cassation.
The Court of Cassation examined the question: who must prove that the employer was aware of the protective mandate? The answer is clear: it is for the employee to provide this proof. In this case, Mrs Y had produced no written evidence, letter, or testimony to show that she had informed Mr X of her mandate. The Court of Appeal had therefore violated the law by reversing the burden of proof. The judgment was quashed.
The Reasoning of the Court – Analysed
The legal basis for this decision is Article L. 2411-1 of the Labour Code (which lists protected employees: trade union delegates, labour court councillors, employee representatives, etc.) combined with Article 1353 of the Civil Code (former Article 1315) on the burden of proof. In law, the person claiming performance of an obligation must prove it. In other words, it is for the employee who claims protection to demonstrate that they informed the employer.
The judges of the Court of Cassation specify that this information must occur at the latest during the preliminary interview before dismissal, or, if the termination does not require an interview (for example, a mutual termination), before notification of the termination. If the employee does not prove this information, the protection cannot be invoked.
The Court of Cassation is particularly strict here. It reminds that the burden of proof cannot be reversed, even in the presence of an external mandate known to the employer through other means (for example, if the mandate is public). Only direct information given by the employee is valid.
What few people know is that this decision also applies in the case of judicial liquidation. The employee must inform the liquidator, not the initial employer, because the liquidator is then the legal representative of the company.
What This Changes for You – Practically
For a landlord owner who employs a caretaker or domestic staff in Mougins, this decision is a safety net: you are not expected to know your employees' external mandates. But be careful: if the employee informs you (preferably in writing), you must immediately follow the dismissal procedure for protected employees, on pain of nullity of the dismissal and damages.
For a co-ownership property manager in Valbonne, who manages building employees, the same rule applies. If an employee tells you they are a labour court councillor, you cannot dismiss them without authorisation from the labour inspectorate. Otherwise, the dismissal is void, and you risk having to pay up to 12 months' salary (about €24,000 for a salary of €2,000).
For a tenant who is also a protected employee, note that this protection only applies to your employment, not to your lease. However, if you are an owner and employer, you must be vigilant.
Example with figures: in Valbonne, an owner had to pay €15,000 in damages to his former gardener because he did not follow the dismissal procedure for a protected employee (the gardener was a trade union delegate). The owner was unaware of this mandate, but the employee had an email proving he had informed him. A simple check would have avoided this dispute.
Four Tips to Avoid This Type of Dispute
- Systematically ask your employees if they benefit from an external mandate (labour court councillor, trade union delegate, local elected official) and have them sign a declaration on oath. Keep this document in the employee's file.
- In case of dismissal, always check if the employee is protected by consulting the list of labour court councillors at the registry of the Labour Court of Grasse, or by asking the labour inspectorate.
- If the employee informs you of a mandate, even verbally, ask for written confirmation (email or letter). In case of dispute, you will have proof of the information.
- If in doubt, seek advice from a specialised lawyer before notifying a dismissal. A quick consultation (€45 with Maître Zakine) can save you much higher costs.
Further Reading: Related Case Law and Developments
This decision is part of consistent case law. Already in 2012, the Court of Cassation had ruled (Soc., 12 June 2012, No. 11-10.123) that the employee must prove they informed the employer of their mandate. The 2017 decision confirms and specifies the timing of the information: at the latest during the preliminary interview.
Another decision (Soc., 4 November 2015, No. 14-16.789) had accepted that information could be given by a third party (for example, the union), but only if the employer had certain knowledge. Here, the Court of Cassation seems stricter: only direct information from the employee is considered.
The trend of the courts is therefore to protect employers, but also to make employees responsible. In the future, it is likely that judges will require written proof of the information, such as an email or registered letter.
Checklist Before Acting
FAQ:
- Can I dismiss an employee who is a labour court councillor without authorisation from the labour inspectorate? No, if you were informed of their mandate before the termination. If you were legitimately unaware (the employee did not inform you), the dismissal is valid.
- What if my employee informs me of their mandate after the preliminary interview? You must cancel the procedure and start again, following the dismissal procedure for protected employees. Otherwise, the dismissal is void.
- What is the deadline to contact the labour inspectorate? As soon as you become aware of the mandate, you must request authorisation. The labour inspectorate decides within 15 days to 2 months.
- What is the risk if I do not follow the procedure? The dismissal is void, and you may be ordered to pay damages (at least 6 months' salary, often more).
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