No payment of delegation time above the time credit if there are no exceptional circumstances

Delegation time used within the limit of the time credit is assumed to be used for good purposes obliging the employer to pay these hours in full before any dispute. However, delegation time that exceeds the time credit does not benefit from the same treatment.

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The global pandemic has disrupted companies which have had to adapt their work organisation and social dialogue. As a result, the duties of employee representatives were disrupted, bringing back to the fore the issue of the taking and payment of delegation time in the event where the monthly time credit is exceeded.

Article R.2314-1 of the French Labour Code provides that the delegation time initially granted may be increased in the event of "exceptional circumstances”. In the absence of a legal definition of such circumstances, it falls on the courts to determine in concrete terms whether the situation presented by an employee representative, who claimed payment of excess delegation time, is an “exceptional circumstance” justifying the claim.

Several recent rulings give us some clarification on what the Employment Division of the Court of Cassation considers to be an “exceptional circumstance” allowing the elected employee representative to obtain payment of excess delegation time.

Overview of exceptions to ordinary law.

Exceptional circumstances, a case-by-case assessment

The taking and payment of delegation time may prove to be a complex subject in some companies, especially in the event of a crisis requiring increased intervention by elected employee representatives.

Indeed, pursuant to an established rule of case law[1], the employer may refuse to pay delegation time performed by the employee representative above his time credit if it considers that it is not justified by exceptional circumstances, as authorised by the provisions of Article R.2314-1 of the French Labour Code cited above.  This is an exception from the principle that the delegation credit is presumed to be regular and does not require any a priori justification to be paid by the employer.

In which cases then can the elected employee representative rely on such circumstances?

Two rulings handed down in 1986[2] and 1994[3], covered in the Ministry of Labour’s Q&A of 16 January 2020, specified that exceptional circumstances are those which involve unusual activity, requiring an increase in processes and activities beyond the scope of the committee members’ routine tasks due in particular to the suddenness or urgency of the measures to be taken. 

Clearly, these rulings on the Works Council are applicable to the Social and Economic Committee and the Court of Cassation is gradually refining its case law in this area.

In a recent case, an employee representative claimed payment for delegation time in excess of his time credit. He argued that the circumstances in which he had used his delegation time, namely a work overload that did not enable him to "deal with" staff working at night, at weekends and on public holidays, were exceptional.

In a ruling of 16 December 2020, the Court of Cassation rejected his claim, ruling that the work overload and working conditions put forward by the employee (moreover not justified) could not be qualified as exceptional circumstances[4].

In a second case that was the subject of a ruling hand down on 12 May 2021, an incumbent elected official who held the position of Treasurer of the Site Works Council claimed the payment of delegation time that exceeded his time credit due to the absence of two Council members, including the Deputy Treasurer[5]

Although the Council in this case was composed of seven incumbent members and two alternate members, the Court of Cassation considered that such absences could be qualified as adequate exceptional circumstances to require the employer to pay the additional hours.

What can we learn from these two rulings?

These two rulings are in line with existing case law and remind us that exceptional circumstances result from problems relating to sudden, unusual and, in a way, “unpredictable” events. If an absence can meet these criteria in a completely objective manner (as in the second case), validating the work overload as justifying exceeding the time credit (as claimed in the first case) would make these circumstances potentially subjective, which would render the challenge by the employer very difficult.

It is therefore satisfactory for the employer that the Employment Division of the Court of Cassation continues to be strict regarding situations that justify the use of excess delegation time.

The right reflexes when faced with a claim for payment of delegation time exceeding the time credit

When faced with such a situation, and as set out in the rulings above, each party has a role to play.

It will be up to the employee to demonstrate how the situation relates to exceptional circumstances requiring him to use delegation time beyond the time credit.

Since the burden of proof logically falls on the employee who claims an exception, the employer will not have to pay for this time if it considers that the situation presented to it does not constitute exceptional circumstances.

The employer will therefore have to know how to react well and analyse the situation.

To do this and adopt the right stance, the employer may try to answer the following questions:

  • For what objective reason (understaffing, strike, social plan, collective resignation, significant downsizing, unforeseeable absences, etc.) did the employee representative use delegation time above his monthly time credit?
  • Could the employee representative objectively perform his mandate within his time credit or was he forced by the circumstances stated above?
  • Is the situation presented by the elected representative sudden, unusual or urgent?
  • Was an alternative objectively feasible?

The answers to these questions will enable the employer to objectively analyse the situation and quickly understand whether the elected representative is eligible for payment of the time claimed or whether he may not be remunerated.

It is therefore essential for the employer to be able to foresee and react well to these situations. There is no doubt that these two recent rulings, and more generally Court of Cassation case law on this matter, will also be used in the context of possible disputes concerning the use of delegation time during the Covid-19 crisis.  

[1] Pour exemple, Cass. Soc. 8 juillet 2009, n°08-42546

[2] Cass. Soc. 3 juin 1986, n°84-94424

[3] Cass. Soc. 6 juillet 1994, n°93-41705

[4] Cass. Soc. 16 décembre 2020, n°19-19685

[5] Cass. Soc. 12 mai 2021, n°19-21124

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