In 2019, France has been facing many strikes and social movements which impacted companies in term of business and staff management. Who did not hear about the “Yellow vests” movement or, more recently, the claims raised against the retirement reform which are still on-going?
Many employers are wondering how to properly react and manage their strikers and non-strikers’ employees. You will find some tips hereafter.
What is a French strike?
In the silence of the French Labor Code, case law had to define what type of movement could fall into the scope of a “strike”. Thus, a strike:
- Is an individual right collectively exercised: it cannot be due to a single person, except if the striker is the only one employed or he/she is involved in a national strike. However, the strike does not have to be endorsed by all the company’s employees and can be limited to an establishment/workshop, a professional category…;
- Results from a concerted decision from the employees: it can be spontaneous, but it must reflect the employees’ common decision to initiate a claim;
- Entails a collective and total disruption of the effective work, which is different from;
- A voluntary slowed production or work rate, so called a “go-slow” strike (“grève perlée”) or work poorly performed;
- A work disruption limited to only one of the employees’ obligations (e.g. stop of the on-call duty);
- Relates to professional claims (e.g. working conditions, health and safety matters, union representative rights etc.), provided such claims are legal and justified. A claim fulfilled by breaking the law or a claim in order to obtain a top up benefit will not be considered as a legitimate strike claim.
If the conditions mentioned above are met, it will trigger the protection provided by the French Labour Code for strikers and non-strikers.
What about the strikers?
Any employee of a private company is entitled to participate in a strike. Striking is a fundamental right in France which cannot be framed by employers.
In the private sector, employees are not compelled to inform their employers prior to the strike but only when the strike begins (i.e. no notice period applies, except in companies in charge of public services).
During the strike, the strikers’ employment contracts are suspended but not terminated. Strikers remain subject to their employment contracts’ obligations (e.g. loyalty, confidentiality). Employers do not have to pay their salaries except if:
- the purpose of the strike is to ensure that the employer complies with a fundamental right (e.g. payment of salaries and/or overtimes, application of the relevant collective bargaining agreement…);
- a minimum service is performed;
- a conflict resolution agreement signed by the employer and the trade unions states otherwise.
Employees involved in a strike are protected, notably against disciplinary sanctions or a dismissal. The strike cannot, per se, ground a dismissal nor a disciplinary sanction if the employees were legally involved in such movement.
Such measures would be held null and void: an employee dismissed because of a strike is entitled to (i) be reinstated on his/her previous positions and the remuneration he/she should have received between his/her dismissal and reinstatement or (ii) if he/she does not want or cannot be reinstated (which is very strictly assessed), damages amounting to at least 6 months’ salary.
The only exception would concern strikers who commit a willful misconduct, which is strictly assessed by case law. It would notably concern the following situations;
- Preventing another employee from getting to work and in particular obstructing the company’s accesses;
- Unlawful occupation of the company’s premises;
- Threatening, insulting or being violent towards third parties, and notably the management.
Strikers’ job positions are also protected: they cannot be replaced by temporary workers or fixed-term contracts: the only option would be the recourse to service providers or to allocate the strikers’ missions between the non-strikers. At the end of the strike, the strikers shall be reinstated in their previous job positions with no impact on their careers or compensation. However, the absences related to the strike can be taken into consideration to reduce a bonus/premium if all the absences are treated equally (except for the absences legally considered as effective working time).
What about the non-strikers?
In theory, the non-strikers should not be impacted by the strike: their employment contracts are not suspended, and the company’s activity must continue as usual. However, some situation can prevent the employer from pursuing its activity and then to pay the non-striker employees (e.g. in the event of a risk for the safety of the non-strikers’ employees).
The employer can request the non-strikers’ employees to replace the strikers, in order to compensate their absences, subject to their qualifications and skills. This situation can increase the non-striker’s workload and the employer will probably have to pay overtime. However, the employer cannot decide to reward the non-striker employees by a bonus just because they do not participate to a strike.
In practice, when strikes are massive, employees can be prevented from coming to work or from arriving on time. The employer does not have to pay such absences and delays.
In practice, the employer would hardly be in a position to sanction the non-strikers employees for those absences or delays: it is very unlikely that a French court would not upheld such sanction/dismissal in this context.
Therefore, it is advisable to anticipate the strike’s consequences and to organize the work during such period to avoid such difficulties. Various options are opened to the employer:
- Tolerate the non-strikers late arrivals and early departures;
- allow employees to work remotely, especially as remote work has been facilitated by a recent reform of 2017;
- award paid leave on strike days (with the employee’s consent);
- provide for a carpooling system;
- offer flexibility in the company’s work schedule (reschedule meetings, focus on important projects etc.).
Strikes can constitute a considerable handicap for the company’s business in France. This is why implementing a smooth social dialogue will help employers to mitigate the side effects that could result from such movements.