Use of delegation hours and the role of the interim relief judge

Cass. Soc., April 5, 2023, n° 21-17.851 FS-B

Delegation hours or “credit hours” are the time granted by the company to the staff representatives for the exercise of their representative functions.

These time credits, the number of which is set by the Labor Code generally based on the number of employees in the company, are considered as actual work time and must be paid at the normal time without the employee having to account for his time.

Does the employer have the possibility to control and contest the delegation hours?

The answer is yes.

However, it should be noted that the employer can only challenge their use after they have been paid.

Indeed, the elected members of the CSE benefit from a presumption of good faith: they are not obliged to justify the use of such hours in advance. The employer is not entitled to exercise an a priori control on these hours: he must pay them and not oppose them (Cass. Soc. 9 December 1985, n°84-44252; Cass. Soc. 19 May 2016, n°14-26967).

After payment and if the employer has any doubts about the proper use of these hours, he may ask the employee representative for clarification.

In the event of refusal or inaccurate information, the employer may refer the matter to the Conseil de Prud’hommes for summary proceedings.

The employee must indicate the nature of the activities performed (Cass. soc. 30-11-2004 n° 03-40.434 FS-PB : RJS 2/05 n° 169) but will not have to justify their use (Cass. soc. 25-5-1993 n° 89-45.542 P : RJS 7/93 n° 757).

By a decision of April 5, 2023, the High Court has refined its jurisprudence on the scope of the jurisdiction of the judge of summary proceedings in matters of use of delegation hours.

The facts concerned an executive holding the position of Group Finance Manager and designated as a union delegate on December 20, 2018. He had a monthly credit of 12 hours.

His employer was requesting:

• a precise description of his delegation hours as well as ;
• the reasons why he had always used this time credit outside of his work time.

At the employer’s request, the employee had communicated a table stating month by month, over the period concerned (from December 2018 to January 2020), his delegation hours as well as his activities which he had worded as follows: “meeting with members“, “research on the rights of the DS and national agreements and collective agreements” “preparation of leaflets” or “various computer entries“..

Believing that it had not received sufficient explanations and details, the company referred the matter to the Conseil de Prud’hommes for an interim injunction ordering it to provide a table with precise breakdowns, detailing day by day and hour by hour the activity to which he had devoted his credit hours while mentioning the places where he had gone as follows: “Monday, February 11, 2019: meeting with the members of the … – 3 hours”.

For the employee, this went beyond a simple request to indicate his activities. He considered that such a degree of precision was tantamount to requiring him to justify the use of his hours, so that the interim relief judge no longer had jurisdiction.

The employer, whose claims were dismissed, appealed this decision.

The Court of Appeal did not follow the employee’s argument and noted “the vagueness of the description produced by the employee of the activities carried out during the disputed delegation hours”.

It also ruled that in the “absence of serious dispute”, the employee was required to justify the necessities of the mandate obliging him to use all of his delegation hours outside his working hours.

The latter filed an appeal in cassation.

Two questions arose:

• Can the employer ask the interim relief judge to order the employee to indicate the activities carried out during the delegation hours?

When questioned on this first point, the Court of Cassation validated the reasoning of the Court of Appeal.

According to the Court, the interim relief judge was competent to order the employee to specify, for the disputed period, “the dates and times at which he used his delegation time credit and the activities carried out during the disputed delegation time”.

The Court of Cassation thus recalled that: “if the employer cannot demand before the judge of summary proceedings the justification of the use of the delegation hours, he can seize this jurisdiction before contesting to obtain from the employee indications on this use”.

In other words, the interim relief judge is competent to order the employee to indicate the activities for which the delegation hours were taken, but cannot order him to justify their use.

This solution is not new, but it provides an interesting illustration of the degree of precision that the employer is entitled to request from the employee representative concerning the indications on the use of his delegation hours before the judge of summary proceedings.

• Can the employer ask the employee to justify the necessities of the mandate requiring him to use all his delegation hours outside his working hours?

The staff representative may take his delegation hours during his working time or, if the needs of the mandate justify it, outside this time (Cass. Soc., 21 November 2000, n°07-40823).

In the latter case, the difference is important because the employer must pay them as overtime (Cass. Soc., November 21, 2000, n°98-40730).

In this case, the employee had taken all of his delegation hours outside of his work time.

The employer referred the matter to the interim relief judge to determine whether the needs of the mandate justified it.

The Court of Appeal had approved the jurisdiction of the summary judgment panel, but its decision was reversed.

The Court of Cassation ruled that:

“if the burden of proof of the requirements of the mandate obliging the employee to use his delegation hours outside of his working time lies with the employee, the employer may not refer the matter to the interim relief judge to obtain the employee’s justification of these requirements.”

Thus, if the employer doubts that the needs of the mandate justify the use of delegation hours outside the usual schedule, he should refer the matter to the Conseil de Prud’hommes on the merits and not to the summary proceedings.

The second part of this judgment provides an innovative solution, which had not been decided until now.