Following a transfer, the new employer cannot be held responsible […].

Following a transfer, the new employer cannot be held responsible for career delays suffered by transferred employees prior to the operation. Court of Cassation, Social Division, December 20, 2023, no. 22-12.381   As we know, the system for proving trade union discrimination requires a comparison, which can be made over time, between the employee's situation before and after the start of his or her trade union activities, and the evolution of his or her colleagues in a similar situation. Thus, the comparison sample must include all employees hired at the same time, at the same level, in the same professional field, with the same or equivalent qualifications. But what about in the event of a company transfer? Can employees who were in a comparable situation on the day they were hired, but who find themselves in a different situation on the day they are transferred, be taken into account in a comparison panel at the new employer, in order to prove the existence of discrimination? In other words, is the new employer responsible for the career developments that took place with its predecessors? That's the whole point of this decision. Let's come back to this:   1. The facts of the case An employee was hired as a multi-skilled service station worker. The latter has held various elective and representative mandates during the employment relationship. Pursuant to the provisions of article L.1224-1 of the French Labor Code, her employment contract was transferred to a new employer in 2002 and again in 2015. Since this transfer, the employee has ceased to hold any representative or union office. However, on November 18, 2016, the latter brought an action before the industrial tribunal seeking payment of various sums, claiming in particular that he was the victim of union discrimination in the context of his career development. To establish this, the employee produced a comparison panel including other employees who, on the date of the first transfer, were already managers or supervisors with their previous employers, while he was a service station employee with his previous employer. In particular, he argued that in the event of a legal transfer of business, the comparison of an employee who has been discriminated against in terms of career development and progression with the other employees of the company should be made on the day he was hired, and not on the day his employment contract was transferred. According to him, the following were to be considered in a comparable situation: ". employees hired at the same time [que lui] and at the same level of qualification, have developed more rapidly, regardless of the existence of a transfer of business involving the transfer of employment contracts and the fact that, on the day of the transfer, the employees being compared no longer had the same status as the applicant employee. ". In a confirmatory ruling, the Court of Appeal hearing the case dismissed his claims. The judges set aside the comparison panel produced, holding that the employees included in this comparison sample were not in a comparable situation on the day the employment contracts were transferred, and that the transferee could not be held responsible for the employees' career development and remuneration that had taken place prior to the transfer, i.e. at a time when the company was not the employer. In addition, in view of the other information provided by the employee, the Court of Appeal considered that the employee had not presented any facts suggesting the existence of direct or indirect discrimination. The employee therefore appealed to the French Supreme Court.   2. The decision of the Cour de cassation The Cour de cassation will adopt the same reasoning as the Cour d'appel, and rightly so. Thus, to motivate its decision, the High Court recalls:

• on the one hand, in the event of a legal transfer, the new employer is required to respect the obligations of the former employer with regard to employees whose employment contracts remain in force;
• on the other hand, the prohibition of any discrimination on the grounds of trade union activity, and the system of proof applicable to discrimination.

She then clarified her reasoning by stating that " whether the new employer is required, in the event of a transfer pursuant to the provisions of Article L. 1224-1 of the French Labor Code, to verify that the principle of equal treatment in terms of remuneration or non-discrimination on the grounds of the transferred employee's trade union activities is respected.In the case of a transfer of an employee's employment contract to a new employer, it is not possible to presume that there has been discrimination in the conditions of career development of the employee transferred to his previous employers. In this case, the Cour de cassation found that for employees with the same seniority and professional qualifications as the plaintiff at the time of the transfer of business, " seven out of eight employees were ranked lower or as high as the employee, and that the employee's career development was identical to that of non-unionized employees "so that " the Court of Appeal was thus able to deduce that the employee had not provided any evidence suggesting the existence of union discrimination ". In other words, while on the day of the transfer, the transferee must ensure that, among the transferred employees, those doing equal work or work of equal value receive comparable remuneration, taking into account their seniority, the transferee is not obliged to look for possible discrimination in the career development of these employees prior to their transfer.   3. The scope of this decision This decision makes sense in view of the new system of proof in discrimination cases, which stipulates that the employee must present evidence suggesting the existence of discrimination, while the employer must prove that its decisions are justified by objective factors unrelated to discrimination. Thus, the buyer of a company, who becomes the new employer after the transfer, cannot suffer the consequences of discrimination in which he was unable to participate, since he was not a party to the previous employment relationship. The pragmatic nature of this decision is also to be commended: since the transferee was not involved in the employment relationship prior to the transfer, there was no way for him to demonstrate that there had been no discrimination in the employee's career development prior to the transfer...