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Internal regulations: for a strict assessment of the provisions of the Labour Code
Based on the decision of the social chamber of the Court of Cassation of 26 June 2019
(Cass. Soc. 26 June 2019, FS-P+B, n° 18-11.230)
Maître Cécile ZAKINE
Lawyer at the Bar of Grasse - Doctor of Law
Lecturer at the University of Nice Sophia-Antipolis
The Schindler company had internal regulations dating from 1985 for which the employer had consulted the staff representative institutions.
According to the provisions of Article 1321-4 of the Labour Code:
"The internal regulations are a written document in which the employer exclusively sets out the rules:
1° Measures for the application of health and safety regulations in the undertaking or establishment, in particular the instructions provided for in Article L. 4122-1 ;
2° The conditions under which employees may be called upon to participate, at the employer's request, in restoring working conditions that protect the health and safety of employees, should they appear to be compromised;
3° General and permanent rules relating to discipline, in particular the nature and the scale of penalties that the employer may impose".
This document specifies a certain number of obligations, particularly in terms of hygiene, safety or sanctions, which the employee and the employer must respect within the company. It also covers gender equality as well as moral or sexual harassment or sexist behaviour.
The conditions of validity are subject to Articles L. 1321-4 and R. 1321-1 to R.1321-6 of the Labour Code:
The rules of procedure can only be introduced after they have been submitted to the social and economic committee for an opinion.
It indicates the date of its entry into force.
This date must be one month after the completion of the filing and advertising formalities.
At the same time as it is published, the internal regulations, together with the opinion of the social and economic committee, are communicated to the labour inspector.
- made known, by any means, to persons having access to the workplace or the premises where the employment takes place.
- filed with the clerk of the industrial tribunal of the jurisdiction of the company or establishment,
- is sent to the labour inspector in duplicate,
- established within three months of the opening of the business.
In this case, the Schindler company made changes to its internal regulations on the orders of the labour inspectorate, but without consulting the employee representative bodies again.
The CGT union for Schindler employees in the Ile-de-France regional headquarters, the Grand Ouest regional headquarters and the RCS subsidiaries has decided to take legal action against Schindler for lack of consultation.
He argued that the Schindler company's internal regulations could not be enforced against employees because they did not indicate the date on which they came into force and because the employer had not carried out a new consultation of the staff representative bodies and had not taken the necessary steps to file and publicise them.
The President of the Tribunal de Grande Instance was seized in summary proceedings (as a matter of urgency if the conditions required by law are met) for the purpose of establishing :
- the unenforceability of the internal regulations against the company's employees,
- the irregularity of the disciplinary procedures implemented
- to prohibit Schindler from implementing disciplinary procedures based on these internal regulations.
The Versailles Court of Appeal, in a judgment of 16 November 2017, dismissed all of the Union's claims, which thus lodged an appeal in cassation.
The Court of Cassation upheld the decision of the lower courts, considering that the employer did not have to carry out a new consultation if, at the time of the initial drafting of the internal regulations, in 1985, the institutions representing the personnel had been consulted.
Employers need advice and support to ensure that they are fully aware of their obligations. rights and obligations in terms of internal rules and management employees.
Good management in advance avoids many disputes!
