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Even in the event of a dismissal of a protected employee authorized by the labour inspectorate, the Labour judge still has jurisdiction over any previous union discrimination

French Supreme Court, 29 May 2019, n°17-23028

In this case, a protected employee dismissed upon authorization of the labour inspectorate had applied to the labour court for compensation based on union discrimination during his career.

While the principle of separation of powers implies that, in the presence of an administrative authorization to dismiss a protected employee, the labour judge cannot assess the real and serious nature of the dismissal, he still has jurisdiction over the employer’s failings prior to the dismissal and relating to matters which have not necessarily been controlled by the administrative authority.

However, in the context of an application for an authorization to dismiss, the labour inspectorate is responsible for verifying whether the application is related to the mandate held by the employee.

The question that arose was therefore whether this control carried out by the labour inspectorate precluded the employee from bringing an action before the labour court on the grounds of union discrimination during his career.

The French Supreme replied in this respect that the control by the labour administration of the absence of a link with the mandate does not make the employee’s claim that there has been trade union discrimination inadmissible.