The green light given by the Labour administration was contested in particular on the following points:
Dismissal criteria
The unilateral PSE had adopted the following assessment rules for the professional ability criterion:
- For professional categories made up exclusively of managers, on the basis of annual appraisals for the years 2017 to 2019,
- For professional categories for which annual appraisals cannot be used, i.e. professional categories made up of non-managers or both managerial and non-managerial employees, “depending on the number of geographical and/or functional moves made by employees” within the company: two points will be awarded to employees in the latter occupational categories who have made at least one geographical move during their career with the company, one point will be awarded to employees who have made at least one functional move, and half a point will be awarded to employees who have made none of these moves, although points obtained in the event of a combination of geographical and functional moves may be added together.
As regards the latter, the CSE argued that the factors used to assess this criterion constituted indirect discrimination, since certain employees, in particular those holding trade union mandates and employees with children in shared custody or caring for dependent elderly relatives, are less able than other employees to achieve geographic or professional mobility. Such a disadvantage would constitute indirect discrimination, either on the grounds of union activities or family status, within the meaning of article L. 1132-1 of the French Labor Code.
The argument was rejected on the grounds that “the applicants do not provide any factual evidence in support of their plea, which is merely a general argument, and, in particular, no evidence specific to the employees of the company whose dismissal is envisaged, which would make it possible to conclude that some of these employees are or have been in a situation that would prevent them from moving”.
The CSE also argued that these assessment criteria used were unrelated to the purpose of the professional qualifications criterion. This argument was also rejected, on the grounds that “taking into account the accomplishment of geographical or professional mobility is not, in itself, insusceptible of reflecting professional qualities and, in this case, it does not appear from the documents in the file that the administration tainted its decision with illegality by considering that, for those occupational categories whose list was produced during the adversarial investigation by the employer and by the administration, such elements were not unrelated to the assessment of the professional qualities of the employees concerned, particularly in terms of their ability to adapt to changes in the company”.
Lastly, the CE stated that “no rule or principle implies that the criterion of order relating to professional ability must be assessed by taking into account at least two distinct indicators”.
What is interesting about this decision: the CE confirms that the criteria used to assess the order may differ from one occupational category to another. When the criterion of the results of professional assessments cannot be retained, it is not in itself obligatory to define several criteria (except in the case of the criterion of disciplinary sanctions). One or more mobility criteria may be used, but care must be taken when selecting criteria for the categories concerned, given the alleged risk of indirect discrimination.
Health and safety
The CSE criticized the method used to assess the workload in the organization targeted by the reorganization project, the absence of risk assessment during the transitional period, on the grounds that the occupational risk assessment documents had not been updated from the start of the reorganization project, and the late presentation to the social and economic committee of the training courses linked to the reorganization project.
The CE specified that “such circumstances are not …in themselves such as to vitiate the contested decision with illegality”.
The fact that the occupational risk assessment documents were not updated at the start of the procedure is therefore not in itself sufficient to establish that the employer failed to meet its obligations under the PSE procedure.