Can a French works council-appointed expert interview employees without the employer's consent?
Cass. soc., 28 June 2023, n° 22-10.293 & 10 July 2024, n° 22-21.082
Can a French works council-appointed expert interview employees without the employer's consent? Two recent French Supreme Court rulings provide valuable insights:
Depending on the circumstances, French works councils may appoint third-party experts to assist in their missions.
Chartered accountant (expert-comptable) - may be appointed in various situations, including:
recurring works council consultation processes (works council consultation on the company's (1) strategic orientations, (2) economic and financial situation and (3) social strategy, working conditions and employment);
public takeover and merger control-specific works council processes;
consultation on a large-scale redundancy project;
works council economic whistleblowing procedure.
Certified expert (expert habilité) - may be appointed in other circumstances, including:
identification of a serious risk;
works council consultation on the introduction of new technologies or a material project impacting employees' working conditions;
in certain companies, in preparation for negotiations on gender equality in the workplace.
The works council may also appoint any other experts (so-called expert libre), but such experts are fully funded by the works council.
The French Labor Code specifies that chartered accountants and certified experts have access to the company's premises to carry out their mission. However, it does not clarify whether such experts may interview employees without the employer's consent. Two recent French Supreme Court rulings provide insights on this:
a chartered accountant appointed in the context of the recurring works council consultation on "social strategy, working conditions and employment" may interview employees, but only with the consent of both the employer and the employee (28 juin 2023, no. 22-10.293).
a certified expert appointed when a serious risk arises (in the case at hand: a potential harassment situation within the HR department of a hospital) may interview employees with the employees' consent, without needing the employer's agreement (the employer may however take legal action to challenge the necessity of certain employees being interviewed by the expert) (10 July 2024, no. 22-21.082).
Whether these solutions should be extended to all appointments of chartered accountants and certified experts, regardless of the grounds for appointment, is up for debate.
In my view, situations where a certified expert may interview employees without seeking the employer's agreements should be strictly limited to minimize the risk of inflated expertise fees to be fully or mostly borne by the employer (in the July ruling, the expert had requested to interview 70 employees over 16,5 business days).