Can French employers challenge the works council's decision to appoint an expert?
Cass. soc., 12 June 2024, n° 23-14.678
Yes, French employers may challenge the works council's decision to appoint an expert. Here is a recent example:
Quick reminders:
In companies with 50 or more employees, French works councils (comité social et économique) have general consultation attributions. This means any contemplated substantial change in the company's "organization, management and general running" requires pre-implementation works council consultation. This includes the introduction of new technologies or any important changes in health and safety conditions or working conditions.
In the context of a consultation process on a material project impacting the employees' working conditions, the works council may appoint a third-party expert to help issue an informed opinion on the project at hand. Such working conditions expert is funded 80% by the employer (or 100%, subject to a series of conditions relating to the works council's budget).
Because the expert is mostly (or entirely) funded by the employer and such appointment extends the consultation deadline for the works council to render its opinion from one to two months, French employment law allows employers to challenge:
the works council's decision to appoint an expert if the need for an expert is questionable;
the choice of the expert;
the projected cost, scope or duration of the expertise; and/or
the final cost of the expertise mission.
When the employer disputes the works council's decision to appoint an expert concerning an alleged project affecting employees' working conditions, it is up to the works council to prove the existence of such project (to this end, the works council may file a claim to obtain information from the employer).
In the ruling at hand, the works council failed to make a strong enough case:
The company planned to create a new region, headed by a new regional manager to be hired. The works council failed to demonstrate that this project would materially affect the employees' working conditions, as it neither impacted:
the scope of the company's operations in France; nor
the France-based employees (whose responsibilities, job classification, org chart and place of work remained unchanged).
Ultimately, the lower court's decision to dismiss the employer's challenge to the expert's appointment was overturned. (French Supreme Court, 12 June 2024, n° 23-14.678)