All of French Company Law: ordinary law of companies and specific regime for different types of companies

Company Law (en cours)

The application of the rules for the provision of employees within a group very concretely illustrates the principle of the legal autonomy of group companies.
1) Mobility clauses
Concerning first the temporary mobility of employees within the group, the case law has determined that the mobility clause, by which the employee bound by an employment contract to a company agrees to accept any transfer …

Legal autonomy and management of employees

The application of the rules for the provision of employees within a group very concretely illustrates the principle of the legal autonomy of group companies.

Concerning first the temporary mobility of employees within the group, the case law has determined that the mobility clause, by which the employee bound by an employment contract to a company agrees to accept any transfer to another company, is void, even if it belongs to the same group . Indeed, it is a principle that an employee cannot consent in advance to a change of employer .

The same solution applies to the permanent transfers of an employee from one company in the group to another. Indeed, the transfer of the employment contract constitutes a modification of the contract that cannot occur without the employee's express consent, which cannot result from the mere continuation of work when the conditions of Article L. 1224-1 of the Labor Code are not met . Thus, a company cannot unilaterally impose on its employee, against their will, to transfer to the service of another newly created company, in the absence of a transfer of an autonomous economic entity from the first to the second . Case law indicates that an employee may refuse a transfer to a branch dependent on a company in the group of the parent company that employs them, as long as it is a distinct legal entity , unless the transfer is part of a company reorganization necessary to maintain competitiveness, in which case the refusal may constitute grounds for economic dismissal . Furthermore, even if the employee accepts the transfer, they cannot expect, in the absence of the conditions of Article L. 1224-1, the transmission to the new employer of all the obligations that were incumbent on the previous one .

The way in which an employee's seniority is assessed also illustrates the legal autonomy of group companies. Indeed, successive employment contracts with several companies belonging to the same group do not allow the employee, unless otherwise provided by agreement or contract or in a situation of co-employment, to claim seniority acquired within another of these companies .

Cass. soc., 19 May 2016, LawLex202200007461JBJ; 23 September 2009, LawLex202200007126JBJ.

Cass. soc., 16 February 2012, LawLex202200007460JBJ.

Cass. soc., 10 October 2006, LawLex202200007445JBJ; 19 May 2016, LawLex202200007461JBJ.

Cass. soc., 2 February 2006, LawLex202200007444JBJ; 5 May 2004, LawLex202200007458JBJ, specifying that the transfer of an employee from one company to another within the same group constitutes a modification of the employment contract that cannot occur without the employee's consent, even if these companies are headed by the same manager.

Cass. soc., 28 March 2000, LawLex202200007275JBJ.

Cass. soc., 10 December 1996, LawLex202200007448JBJ.

Cass. soc., 23 March 2022, LawLex202200011472JBJ, RJ com. 2022, 397, note LE GROG.

Cass. soc., 20 October 2010, LawLex202200007453JBJ.

Company Law (en cours)

274. Legal autonomy and management of employees

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

274. Legal autonomy and management of employees

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise