Employees may not be heard as part of an expert appraisal commissioned by the CSE without the employer’s express agreement.

In this case, an employee was made redundant after his company was acquired by a Group.

As a result, he took his case to the industrial tribunal to contest the termination and the procedure, which he claimed was irregular.

The Court of Appeal rejected his request, ruling that the dismissal procedure was in order on the grounds that the manager who conducted the preliminary interview had been sent by one of the group’s companies as an external consultant. He had also received a mandate to act in the name and on behalf of the legal representative of the acquired company in its operational, administrative and financial management.

The judges also noted that the management entrusted to the agent included human resources, which implied the conduct of disciplinary and dismissal procedures.

In response to the employee’s appeal, the legal judges pointed out that articles L.1232-3 and L.1232-6 of the French Labor Code state that the very purpose of the preliminary interview and the rules governing notification of dismissal prohibit the employer from appointing a person from outside the company to conduct the interview and notify the dismissal.

Nevertheless, the High Court dismissed the appeal and reiterated the findings of the Court of Appeal, adding that the delegate was not a stranger to the company, thereby rendering the dismissal procedure lawful.

In other words, the director of a group company sent as a consultant to one of the companies with a mandate to act in particular in human resources management cannot be considered as a foreign person and can regularly hold the preliminary interview.

This ruling consolidates the position of the Cour de cassation in this area, which had previously held that the parent company’s HR department can be mandated to carry out the preliminary interview and dismissal of an employee of one of the subsidiaries insofar as he is not considered as a person outside the company. (cass. Soc. September 23, 2009, no. 07-44200).

(Cass. soc. 28-6-2023 n° 21-18.142 FS-B, O. c/ Sté Dimonix)