The employer cannot lay off an employee who was protected, for a motive already rejected by the work inspection

Labour Law

Source: Supreme Court, Social Ch., 23 Sept 2015, n°14-10.648

According to a decision dated 23rd September 2015, an employee, who was previously union representative (hence protected employee) in a first company and was transferred to another company in which he was asked to do some handling tasks of aircraft type seat. The employee refused to do those tasks because he considered that they were not part of his duties.

Indeed, as an "aircraft type seat mechanic", his tasks consisted in ensure the removing and refitting, the inspection, the repairing and the modification of the aircraft type seat, and not the handling. He had then been the subject of two lay off proceedings on the grounds of fault, which ended in the refusal of authorization by the work inspection.

At the end of his period of protection, the employee has finally been laid off by his employer because he still refused to accomplish the litigious tasks. In its decision, the Supreme Court considered that the employer could not lay off an employee, formerly protected, for a motive that had already ended in a decision of refusal by the work inspection.

Thus the Court considers: "Whereas, however, the lay-off pronounced after the expiration of the legal period of protection, cannot be driven by the facts mentioned in front of the administrative authority and which ended in a decision of refusal of the authorization of the lay-off;

Then, considering as included in his employment contract, the tasks of handling aircraft type seats and, considering faulty the refusal of the employee to accomplish them though the administrative authority had previously refused to authorize the lay-off of the employee, for the motive that those tasks were not inherent to the contract and resulted from a modification that the employee had the right to refuse, the Court of Appeal has violated the aforementioned text."