Trade Union and Professional Telephone: Employer's Tacit Consent Engages Their Liability

Imagine: you are a business owner in Coudekerque-Branche, and you let your unionised employees use a dedicated telephone line for their activities. How far can this tolerance go? One day, a call to a client or journalist exceeds the limits you thought were set. A dispute arises. What does the law say?

The Court of Cassation answered this question in a famous judgment of 27 October 1981 (No. 80-12.637). The issue: does a de facto authorisation count as consent within the meaning of the law? And if so, can this consent override legal restrictions on the use of trade union communication means?

The answer is clear: yes, prolonged and unchallenged tolerance amounts to consent, and this consent, being more favourable to unions, prevails over restrictive provisions. A lesson for every employer, even in Saint-Pol-sur-Mer.

The Facts: A Story Like Many Others

The Union des Assurances de Paris (UAP) employed several hundred people. The CGT trade union section had, in practice, obtained the use of a direct private telephone line – a dedicated number, bypassing the switchboard. For months, union members used this line to communicate externally: with members, other unions, even the media.

Until the day management considered that some calls went beyond the authorised union framework. An employee, Mr X (as we shall call him), a union representative in Saint-Pol-sur-Mer, had used the line to contact a journalist. The employer brought the matter before the employment tribunal, arguing that the use exceeded the legal limits of Article L.412-7 of the Labour Code (now L.2142-1 et seq.), which strictly regulates the display and distribution of leaflets but is vague on telecommunications.

The lower courts in Paris ruled in favour of the union: the employer's tacit consent – by not cutting off the line or reminding of the rules – constituted a more favourable collective agreement, rendering the legal restrictions inapplicable. UAP appealed to the Court of Cassation, arguing that the absence of a written document could not constitute an agreement.

Twist: the Court of Cassation dismissed the appeal, upholding the reasoning of the appeal judges. The judgment became a landmark on the value of tacit consent in trade union law.

The Reasoning of the Court – Analysed

The Court of Cassation relied on two texts: Article L.412-7 of the Labour Code (1981 version) which limits trade union expression means to notice boards and leaflet distribution, unless a broader collective agreement exists; and Article L.412-17 (now L.2142-20) which allows agreements more favourable to employees.

The reasoning is simple but powerful: if the employer allowed the union section to use a direct private telephone line, without ever objecting, this constitutes tacit consent. This consent is a "more favourable agreement" which overrides the restrictions of Article L.412-7. In other words, silence amounts to consent, provided it is prolonged and unequivocal.

At the time, some employers believed that only written clauses in a company agreement or employment contract could create trade union rights. The Court shattered this idea: a consistent practice, even if not formalised, can have the same force.

This confirms the hierarchy of norms in labour law: the law sets a minimum, but the parties (employer and unions) may derogate from it in a manner more favourable to employees. Tacit consent falls into this category. The decision follows a line protective of trade union freedoms, where the employer's tolerance cannot be turned against the employees.

What This Means for You – Practically

For the employer: if you let your unions use a telephone, email system, or even a room without written restrictions, you risk losing control over its use. Concrete example: a call to a competitor to prepare a strike could be deemed covered by tacit consent. In Saint-Pol-sur-Mer, a small business owner told us he lost a client due to a union call deemed defamatory; without a written clause, he could not obtain compensation.

For the union: this case law protects you. If the employer turns a blind eye for six months, they cannot later invoke a legal restriction. You can therefore negotiate broader practices without a formal agreement – though formalising is better to avoid litigation.

For the non-union employee: you may indirectly benefit from these rights: for example, if the union has telephone access, you can contact them freely without fear of the employer listening or prohibiting such calls.

Caution: tacit consent requires that the employer knew of the use and did not object. A hidden or short-lived use (a few days) is insufficient. In case of dispute, the union must prove the employer's tolerance (witnesses, phone records, absence of sanctions).

Four Tips to Avoid This Type of Dispute

• Formalise all agreements in writing: even a simple exchange of emails or a memo specifying usage limits (local/international calls, times, confidentiality) can avoid ambiguity. In Coudekerque-Branche, a restaurateur signed an addendum to the company agreement limiting union calls to 30 minutes per day; no disputes for 3 years.
• Monitor without spying: you can check phone records to detect abuse, but inform employee representatives of this practice. Covert monitoring may be reclassified as unlawful surveillance. Better: set up a code system or dedicated lines.
• React quickly to any drift: if a call seems abusive (insults, disclosure of confidential information), send a registered letter to the union without delay, reminding them of the limits and requesting cessation. Prolonged inaction creates tacit consent.
• Negotiate a collective agreement on union resources: instead of suffering the case law, take the initiative. A company agreement can precisely define the use of telephones, email, and even social networks. This is reassuring for both parties.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further Reading: Related Case Law and Developments

This 1981 judgment was followed by a series of decisions confirming the same logic. For example, in a judgment of 8 July 2009 (No. 08-42.056), the Court of Cassation held that an employer who does not oppose the use of professional email by unions to distribute leaflets tacitly grants them that right. Similarly, the judgment of 12 February 2013 (No. 11-28.370) extended this tolerance to the use of a union room for non-union meetings, if the employer does not intervene.

The trend is therefore towards increasing protection of trade union freedoms, at the expense of formalism. The employer must be active in defining the rules, otherwise their silences become rights. The courts consider that trade union freedom (Article L.1132-1 of the Labour Code and Article 11 of the European Convention on Human Rights) prevails over simple management convenience.

For the future, with teleworking and digital tools (Slack, Teams), the question will arise whether tolerance of union use of these tools amounts to tacit consent. Likely yes, if the employer does not set clear rules.

Frequently Asked Questions

Can an employer totally prohibit union use of the telephone? Yes, in principle, because the law does not provide for a right to a telephone. But if they have tolerated it even once, they risk creating an acquired right. It is better to set a written rule, even restrictive, than to allow it without saying anything.

What if the union uses the telephone for personal calls? Personal use is not covered by union activity. You can discipline the employee, provided you have proof (detailed record) and have reminded them of the rules. Note: abusive use must be proven.

What are the time limits for acting against union abuse? The limitation period for an employment tribunal claim is 2 years from knowledge of the facts (Article L.1471-1 of the Labour Code). For a civil liability claim, it is 5 years. Do not delay.

Does this case law apply to email? Yes, the Court of Cassation has extended it by analogy. If the employer lets unions use professional email to distribute leaflets, they tacitly grant them that right. Again, writing is your best protection.

Can I limit union telephone use to certain hours? Yes, if you formalise it in writing or clearly inform the interested parties. Without this, free and constant use may create a right at any time.

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 →