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Health and Safety Are Key to Restructuring in France
May 26, 2022
Notwithstanding the extensive financial support of the government, the pandemic has put a great strain on many companies in France, leaving them no choice but to restructure and downsize their workforce. In companies required to implement a social plan (i.e., companies with 50 employees or more planning to terminate the employment of at least 10 employees over a 30-day period), the project — whether collectively agreed-upon with unions or unilaterally set by the employer — must be signed off by the labor authorities. Without this validation, any subsequent dismissal could be held null and void and entitle employees wrongly terminated to reinstatement or payment of damages.
Traditionally, international corporations had a tendency to focus solely on the financial measures and redeployment opportunities they could provide in the plan. These were the main conditions to ensure a positive decision from the labor authorities.
While this remains mostly true, the focus has recently shifted a little with increasing attention given by labor inspectors to the protection of health and safety when considering the validity of the social plan. This is not surprising. All employers are subject to a legal and strong duty to protect the health and safety of their workforce, and it has been highlighted because of the pandemic.
A restructuring can be stressful in France for all stakeholders. From the announcement of the project to the notification of redundancies, everyone is under pressure: employees who do not know if or when they will lose their job; human Resources, which must handle, inter alia, discussions and negotiations with employees’ representatives and are pushed by the company to bring the process to an end; and the employees’ representatives, the Social and Economic Committee (CSE), which has replaced the works council, and unions.
Neglecting the protection of health and safety can not only lead to delay in completion due to the refusal of the labor authorities but it can also aggravate the psycho-sociological risks inherent to this type of project among employees who would have to handle the consequences of their dismissal on their family, career and so forth.
To deal with these frequent pitfalls, the following checklist should guide employers in preparing the health and safety component of their restructuring project:
Before the announcement:
- List, per category of employees composing the workforce, all health and safety risks that will likely be triggered by the operation and analyze them: Are these risks temporary or long-term? Does the company have processes in place to mitigate them? If so, would they be considered sufficient?
- List the durable and less durable modifications of skills, qualifications and tools that the project will entail, along with the consequences on the employees’ workload (notably for remaining employees).
- Update the mandatory unique occupational risks assessment document (DUERP) within the company, in light of the risks identified in the context of the restructuring project.
When announcing the project:
- Envision measures that could mitigate the impact of the announcement on the various categories of employees, for instance, those at risk of being more isolated due to full-time remote work.
- Control communication to avoid leaks before the consultation phase with the CSE has begun, as rumors are likely to increase anxiety and stress.
During the information/consultation process with the CSE and the negotiation phase with unions:
- Propose accompanying measures straight away after the project announcement: psychological support, internal workshops on stress management, designation of a psychological risk referral, implementation of an alert procedure.
- Schedule a distinct information/consultation on health and safety with the CSE and provide them with detailed information on the risk analysis conducted and the measures identified to mitigate such risks. The CSE’s opinion on this specific aspect of the project should be communicated to the labor authorities, who will closely analyze it for the redeployment and financial measures components of the social plan.
By Julien Haure and Marine Hamon
Julian Haure is a partner in Mayer Brown’s Employment & Benefits practice group of the Paris office.
Marine Hamon is an associate in Mayer Brown’s Employment & Benefits practice group of the Paris office.
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