In the absence of a regulation in the Constitution, of a definition in the Labor Code and because of the abundance of litigation due to the exercise of the right to strike, jurisprudence has progressively defined a precise, albeit evolving, framework of the right to strike as well as its conditions of exercise, its protection, and its limits.
In a recent ruling, (November 23rd, 2022), the social Chamber of the Cour of Cassation provided further clarification concerning the scope of workers’ protection for exercising their right to strike.
• Conditions for exercising the right to strike
The definition of strike as it results from the jurisprudence consists in a collective and concerted cessation of work to support professional demands of which the employer has been informed (1).
Four conditions must be gathered to characterize the right to strike:
– The total cessation of work by the employees who claim the right to strike. They cannot simply free themselves from certain obligations.
– A collective and concerted character: the strike necessarily results from a collective decision of the work and must be followed by several employees, except for companies with only one employee or the employee wishing to participate in a strike launched at a national level.
– Demands of a professional nature, such as matters relating to working conditions, but solidarity with other employees is also possible, if it is in the collective and professional interest.
– Information to the employer: the employee’s demands must be communicated to the employer beforehand.
The strike will be considered unlawful if it does not comply with this definition of the right to strike. If these conditions are not gathered, the striker will not be able to benefit from the protection offered by the labor law.
• The right to strike’s protection extended
Article L.2511-1 of the French Labor Code stipulates that the exercise of the right to strike cannot justify the termination of the employment contract, except in the case of gross negligence on the part of the employee, and that any dismissal pronounced in the absence of gross negligence is null and void.
Thus, in order to justify the dismissal, it is up to the employer to prove that the employee has committed gross misconduct, i.e. a misconduct that was committed with the intention of harming the employer.
By prohibiting the termination of employment contracts based on the exercise of the right to strike, or by reducing this possibility to the specific case of gross negligence, the Labor Code ensures the protection of those involved in the protest.
While the Court of Cassation has long held that dismissal for participating in a strike is null and void, it very quickly extended its scope to any dismissal for an act committed during the strike that could not be qualified as gross negligence (2).
Recently, the question has been raised whether the protection could also be extended to an act committed during the pre-strike phase, for example during the consultation between employees.
In this case, the facts were as follows: an employee had contacted members of his team working at other sites to inform them of his intention to strike and another colleague to encourage him to do the same, claiming to have the support of customers if a strike was called. The facts were therefore prior to the start of the strike, which in fact did not take place.
The employer saw this as “intimidation” of his employees and as an intention to harm him, and dismissed him for gross misconduct because he had encouraged his colleagues to go on strike.
The employee took legal action to contest his dismissal and then to the Court of Appeal, which dismissed the case. According to the judges, it could not be considered that the employee had been dismissed for having intended to exercise his right to strike, as the letter of dismissal reproached him not for having wished to implement this constitutional right, but for having incited the members of his team to take such action in response to the refusal of the management to hire additional staff. According to these judges, therefore, it was unlawful for the employer to sanction an intention to stop work, but not to sanction an incitement to strike.
This decision was censured by the Court of Cassation because the acts of which the employee was accused were committed during the exercise of the right to strike, and that, since the legal definition of a strike is a collective and concerted cessation of work in order to make demands, it seems legitimate to include in its exercise the phases of concertation between employees involving a certain amount of incitement.
Nevertheless, certain nuances should be noted. The protection of the right to strike is not absolute. For example, in a similar case, the Court of Cassation ruled that the dismissal for gross misconduct of an employee who had blocked the exit of a truck by pressuring colleagues to prevent non-striking employees from leaving the premises to do their work was valid (3).
Therefore, the protection offered to strikers should be analyzed casuistically.
• Limits of the right to strike’s exercise
According to article L. 2512-2 of the French Labor Code, any strike in the public sector must be preceded by a notice: this notice must reach the hierarchical authority or the management of the company, establishment or organization five clear days before the strike is called. Failure to comply with the notice constitutes gross misconduct for the employees who called the strike, as well as for the organizers of the strike (4).
Contrary to the law applicable in the public sector, employees in the private sector are not required to give notice of a strike, except in the case of specific legal provisions.
Indeed, certain limitations on the right to strike relate to specific sectors such as transport. For instance, a law from March 19, 2012 regulates the exercise of the strike’s right in the passenger air transport sector.
In particular, the law provides the possibility of prior negotiation of a framework agreement with the social partners and for mandatory negotiations between employers and representative organizations that intend to exercise their right to strike.
This law also requires from striking employees to inform the company of their intention to participate in the strike at least 48 hours beforehand when their absence may affect the flight’s operation.
Consequently, the right to strike is a fundamental right, guaranteed by the Constitution, on which the Labor Code is rather silent, thus leaving the possibility for the courts to frame the notion.
(1) (Cass, soc, May 16, 1989, n°85-43.359).
(2) (Cass. soc. 1992-01-22 no 90-44.249 PF).
(3) (Cass. soc., September 14, 2017, no 16-16.069).
(4) (Cass. soc., February 6, 1985, no 82-16.447).
