Employers that operate internationally need to be aware of their legal responsibilities in different countries. Alain-Christian Monkam examines the important differences between the laws on collective redundancies in France and Great Britain, focusing on when, who and what to consult, and for how long.
On one hand, French laws focus on the powers afforded to the employee representatives during the consultation procedure. On the other hand, laws that apply in England, Wales and Scotland seem to give priority to the speed and the efficiency of the procedure.
Two recent important pieces of legislation have strengthened these differences: the French Act of 14 June 2013, “Loi de sécurisation de l’emploi”, gave additional powers to the trade unions and the French labour administration, whereas in Great Britain, the minimum consultation period (before the dismissals take effect) was reduced in certain circumstances by the TULR(C)A 1992 (Amendment) Order 2013.
When to consult?
In Great Britain, under s.188(1) of TULR(C)A 1992, the employer has a duty to consult where it proposes “to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less”. The French laws are particularly strict and intricate: the employer has a duty to consult as soon as it proposes to make redundant at least two employees over a period of 30 days. However, the scope and the content of the duty to consult depend on the number of the targeted employees and the number of employees in the company.
Who to consult?
In Great Britain, the employer must consult “the appropriate representatives of any affected employees”. Basically, these representatives are the independent trade union (recognised by the employer) that represents the affected employees. Where there is no such trade union, the employer shall consult the representatives appointed or elected by the affected employees.
In France, the employer has a duty to consult the elected employee representatives, which may be either the “délégués du personnel” or the works council (“comité d’entreprise” existing in a company that has at least 50 employees).
What to consult about?
In Great Britain, the process must include consultation about ways of avoiding the dismissals, reducing the numbers of employees to be dismissed and mitigating the consequences of the dismissals (s.188(2) of TULR(C)A 1992). The employer has to disclose certain information under s.188(4) of TULR(C)A 1992, including: the reasons for the proposed redundancies; the numbers and descriptions of employees whom it proposes to dismiss as redundant; the proposed method of selecting the employees who may be dismissed; and the proposed method of carrying out the dismissals.
Across the Channel in France, if there are fewer than 10 employees proposed for redundancy over a period of 30 days, the employer must provide information that is similar to that set out in s.188(4) of TULR(C)A 1992, as mentioned above.
If there are at least 10 employees proposed for redundancy over a period of 30 days:
- if the company has fewer than 50 employees, it must also provide information on proposed measures to avoid or reduce the dismissals; or
- if the company has at least 50 employees, it must also provide a “plan de sauvegarde de l’emploi” to the works council (art.L 1233-61 of the French Code of Labour). Such a plan precisely sets out the measures to redeploy the employees in the company or in the group. The plan provided to the works council is either negotiated with the trade unions having a majority in the company or unilaterally proposed by the employer. In any case, the French Labour Administration must validate the plan after the consultation.
A French works council also has the right to be consulted about the general project of restructuring. This is a separate and additional consultation.
How long to consult?
In Great Britain, the consultation period has been reduced to a minimum of 45 days (instead of 90) where the employer proposes to dismiss 100 employees or more (otherwise, it lasts for a minimum of 30 days). In France, depending on the situation, the consultation procedure might stretch anywhere between 30 to 150 days, or even longer in some circumstances. In case of failure to consult properly, the whole procedure might be suspended or nullified by the French Tribunal whereas in England, the employer risks having to pay a protective award.