The employee is awarded 30,000 euros for economic damages resulting from the discrimination.
He is awarded 10,000 euros for moral damages resulting from the discrimination and 5,000 euros in damages for discriminatory harassment.
2.1) On claims for union discrimination
Defined in Article L. 2141-5 of the French Labor Code, union discrimination is the fact that the employer takes into consideration membership in a union or the exercise of union activity to make decisions in matters such as recruitment, conduct and distribution of work, professional training, advancement, remuneration and granting of social benefits, disciplinary measures and termination of the employment contract.
In accordance with Article L. 1134-1 of this code, it is initially up to the union employee who claims to be a victim of discrimination to submit to the judge the factual elements likely to characterize an infringement of the principle of equal treatment and then, secondly, for the employer to establish that the disparity in situation observed is justified by objective criteria, unrelated to any discrimination based on membership of a union.
Mr. X states that since his election in June 2013, he has suffered union discrimination, in the form of individual increases being granted at a lower rate than other employees, the stagnation of his variable remuneration, and the absence of promotion to a higher hierarchical level. - He claims that between 2013 and 2023 his salary increased by only 19.50%, whereas it had increased by 30% between 2006 and 2012.
It is clear from the documents produced that between 2006 and 2013, Mr. X’s remuneration increased from 47,826 euros to 62,273 euros, an increase of 30.2% in total, or an increase of 4.3% per year. Between 2013 and 2023, Mr. X’s annual fixed remuneration increased from 62,273 euros to 74,400 euros, a total increase of 19.47%, or an annual increase of 1.9%.
However, the Court notes that the observed slowdown did not actually begin with the election of Mr. X, since between 2010 and 2013, his salary had only increased by 1.91%, or 0.6% per year. Thus, the decline in remuneration levels had been significantly more pronounced in the years preceding Mr. X's election than in the years following it. - Mr. X also maintains that his remuneration level is lower than that of employees in level J to which he belongs. However, the Court notes that while at the time of his election, his remuneration level was 7.5% lower than that of employees in his category, it has continued to increase in proportion to this category, ending up in 2023 at almost 3.9% higher than his category. Thus, during his term of office, his remuneration level within his category has increased very substantially, which clearly cannot constitute discrimination. - Mr X also relies on the fact that on a classification scale from B to K, he has been at level J since 2006, and that his employer has never given him level K.
However, the move from one level to another does not depend on seniority, but on the duties actually performed by the employee. It is therefore in vain for him to claim the average seniority of employees at level K, since he does not claim, and even less does he justify, that the duties he performed within the bank corresponded to this level of responsibility.
It is clear from the documents produced and the conventional definitions that the functions of research officer in the bank correspond to level J. Level K, which concerns in particular “the achievement of the objectives of an operational unit whose size and complexity require a delegation of authority over the staff attached to it; participation in the development of the policy of a major function, due to the contribution to the process of preparing and approving the decisions taken; the exercise of an expert function” corresponds to very high levels of responsibility, which are not those of research officers. The employer produces a summary table in this regard which shows that almost all of the bank's research officers are at level J.
- Mr X also relies on a comparison with a panel of employees recruited the same year who have a comparable level of education and qualification. This panel was carried out at the request of the labour inspectorate. However, the comparison made is based on the entire career of the employees in the panel, to arrive at the conclusion that 85% of the employees in the panel are positioned above him. However, this is not a useful comparison for establishing discrimination, since the diagrams provided show that in 2013, the date of his election, Mr X was already in the 15% of employees in the panel whose classification was the lowest. Thus, the situation pre-existed the employee's union involvement, and it cannot therefore suggest the existence of union discrimination.
Similarly, if it is established that Mr. X receives a variable remuneration that is significantly lower than that of the panel, it must be noted that this situation was already present in the same proportions before his election, and is therefore not to be linked to union discrimination. - Mr. X further states that since 2018, he has informed his employer every year of his desire for professional development within the company, that he has participated in career forums, applied for 13 positions as part of job exchanges, but that none of his efforts were successful before August 2023, the date of the end of his mandates. He emphasizes that it is clear from the responses that were given that his delegation hours, representing approximately 60 hours per month, had constituted a significant obstacle to his mobility, his interlocutors systematically telling him that his presence in the positions applied for should be at least 70%, which was incompatible with the exercise of his various mandates. The fact that requests for internal mobility, validated by his hierarchy, for an employee who has not benefited from any mobility since 2015, have not been followed up for five years suggests the existence of union discrimination. In response, Bank Y argues that the employee is not sufficiently proactive in seeking internal mobility, which is why it has not been successful.
The court notes that although the employee expressed from 2021, a date at which he had not progressed for 5 years, the fact that he felt he was at an impasse, no proposal was made to him. Within the company itself, he cannot be asked to be the sole initiator of internal movements, when without the employer's intervention, the hours of delegation linked to his union commitment necessarily disqualify his applications to department heads.
In view of this career blockage since 2018, the court therefore holds that Mr. X suffered union discrimination.
His economic loss will be assessed at 30,000 euros, the court not retaining the calculation resulting from the Clerc method due to the above motivations, but considering that mobility based on the request he made in 2018 could have led to an increase in his remuneration of around 6,000 euros per year.
This union discrimination also caused him moral harm justifying the award of 10,000 euros in damages.
2.2) On the claim for discriminatory harassment and the obligation of Prevention
Mr. X, to characterize the facts of discriminatory harassment, refers to the elements previously mentioned, of which the court only retained the discriminatory nature for the career blockage since 2018.
With regard to the 2015 work accident, this qualification was retained by the Court of Appeal, which noted that he had suffered a situation of significant stress shortly after a meeting; treatment with antidepressants followed.
These elements make it possible to characterize the discriminatory harassment invoked, so that the claim for damages on this count in the amount of 5,000 euros will be upheld.
To read the full brief, click on the link below:
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
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