How to assess the existence of trade union discrimination in a career

Union membership should not be a factor of discrimination in the company, especially when it comes to salary changes. On this topic, the Court of Cassation provides an interesting clarification on how such discrimination can (or cannot) be characterized by examining the employee's professional career.

metallurgy

The case, which was decided in October 2023, pits the retired employee against his former employer, the metallurgical company Arcelormittal Méditerranée. This employee turns against his former employer a few years after his retirement. He is considered a victim of discrimination due to his union mandate within the works council between 1976 and 1978. In fact, the employee believes that his union mandate had a negative impact on the development of his compensation. But the appellate court does not see it that way: the employee therefore goes as far as cassation to try to confirm his point of view.

Trade union discrimination must be determined on the basis of comparable situations in the company

To support his position, the now-retired employee points to the slowness of his advancement in the company after the union mandate. During this mandate, it was confirmed, the employee participated in strikes in 1976 and 1979. Since his promotion in 1977, there has been a halt in his development, he says. He points out the fact that it took him 12 years to climb to the next level (ie 1989), then another 12 years to climb to the next level (ie 2001). According to him, this slowness in the advancement of his career is in complete contrast to the evolution experienced by the other employees of the company at the same time. They have quite experienced delays that oscillate between 3 and 5 years per level.

Faced with this, the company is taking advantage of the time of advancement observed throughout the profession. These deadlines are much longer than in the company: between 16 and 24 years depending on the level! The Court of Appeals supported this argument and held that “union discrimination cannot be presumed based on the length of time spent at different levels, as alleged by the employee.”

However, the court of cassation reminds that only the company's decisions are disputed. Consequently, statistical data on career development within the company itself serve as a reference to know whether the employee who complained was discriminated against by the union:

Judging by this, while the comparison with the average length of service in the profession was ineffective, since the employer's decisions were challenged, and the statistics of the average length of service per coefficient in the company, determined by the employer himself, suggested the existence of union discrimination. , the appellate court violated the above texts.

Social Council of the Court of Cassation, appeal no. 22-11.698, 18.10.2023.

Comparing the deadlines that the company imposed on the employee between the two changes with the deadlines that are normally recorded for other employees, the Court of Cassation considers that indications of trade union discrimination have been established. Therefore, the decision of the Court of Appeal, which ruled in favor of the company, is annulled and a new judgment must be made, which will take into account the unequal treatment to which the retired worker was a victim.

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