Social plans: the HR face the judges
Will it towards a form of judicial dismissals as it once existed an administrative authorization? The high courts have recently banned two French companies to implement a social plan. The reason is simple. These two companies, and Vivéo Sodimedical, loss of competitiveness in the domestic market belong to foreign groups financially healthy and judges have ruled on the lack of economic rationale to implement a social plan. Decisions since confirmed by the appellate courts of Paris and Reims.
"This is a first," protested Nicolas Sauvage, member of Avosial, the influential lawyers' union in labor law, which has just sent a letter to presidential candidates asking them to "take a stand" on the issue. A first for three reasons. "Not only is there no provision in the Labor Code which allows a judge to conclude, before a social plan is triggered, the lack of economic rationale and cancel it in stride, but it intrudes more and doing it in company management, which is prohibited by the Civil Code, "argues Nicolas Sauvage.
The lawyer also notes that only the employment tribunals may cancel an ex post social – and not, ex ante, the high court – because of the absence or insufficiency of rehabilitation measures put in implemented. And therefore condemn the offending companies to pay damages as compensation.
To him, the danger is all the more important that the Social Chamber of the Supreme Court, whose judgments regularly give a cold sweat at all DRH de France, is a crucial hearing next Tuesday in the case Vivéo cash advance. His judgment will be delivered mid-March. After being bought by a competitor in 2010, this French software for bank trading rooms wanted to restructure to cope with the collapse of its activity after the crisis. But as he belongs to a German group to blooming health, the Court of Appeal of Paris has forbidden, while no departure had yet been reached.
Question attractive
According Avosial, confirmation of this judgment to the Supreme Court would create "a huge uncertainty for employers, small or large groups, French or foreign." It would encourage companies to "wait to be on the brink rather than anticipating the tough decisions" that may require the use of downsizing for a company to remain competitive. "The vast majority of restructuring is to sustain an activity and not to make profits to increase capitalization," argues Nicolas Sauvage.
Such confirmation could also be opened "the door to the prohibition of dismissal in France" and harm "to the attractiveness of France and its ability to retain or create jobs," says Nicolas Sauvage.
Also addresses the presidential candidates, Avosial hope that the Supreme Court will recall a fundamental principle of French law which states that there is' no nullity without text. " Verdict in less than one month.