I echo a ministerial response from our Minister of Justice to a question asked by the deputy Christian Vanneste concerning the functioning of the Labor Courts, question asked on May 7th and answered, there is a few days, August 26th.
The complete texts of the questions and answers are available here .
The member wonders about the proportion of decisions favorable to the employee, knowing that with rare exceptions, it is he who seizes the Labor Court.
Indeed, the Labor Court has this particular in relation to the Court of Instance and the Tribunal de Grande Instance that it is always the same categories of people who are plaintiffs (the employee) and defendants (the employer) .
In summary, the member is astonished, even though the Conseil de Prud'hommes gives statistically more often the employee than the employer reason that only half of French people have a good opinion of the jurisdiction. In other words, despite the very high proportion of employees in France in relation to the number of employers, half of the population is not satisfied with the functioning of the tribunal prud'homale.
Hence his request for statistical data to the Garde des Sceaux and his questioning about the appropriateness of an in-depth reform of the jurisdiction.
The following figures are as follows:
- 71% of the judgments welcomed the requests on the merits
- 81% of the judgments welcomed the applications for interim measures
- 18.6% of the judgments were rendered in tiebreaker hearing, 63.4% of which answered the employee's requests
- 62.5% of judgments were appealed and 11% of an appeal in cassation for confirmation rates of 54.8% on appeal and 80.1% in cassation, (I emphasize that this seemingly innocuous detail is actually of great importance)
The Guardian of the Seals deduces that "these rates do not allow to doubt the quality of the decisions rendered by these jurisdictions". It advocates, as an improvement, after the suppression of 62 labor tribunals, including the increase in the compensation of labor councilors. Remember that the hourly rate of the vacation is a little over eight euros.
What do I think of these figures?
Well, I think that as usual, with our dear Keeper of the Seals and as already recalled Eolas, in this article in which he awarded him his famous Busiris award for the alleged success of the law on recidivism and the penalties floor, we can make say what we want to statistics.
Let us take these figures and examine them more closely by sticking especially to the specificity of the procedure prud'homale .
Remember that the latter is apparently simple since it is sufficient, to seize the Board of Labor, to fill out a simple pre-printed form.
It should also be remembered that, apart from being a furious, furious litigant, the majority of our fellow citizens do not like to get into the courts, even civil ones. Thus, the employee will consider entering the jurisdiction only after several unsuccessful attempts to find an amicable agreement with his employer and for requests that for him "sink" as a non-payment of salary or additional salary or the absence of issuance of documents (pay slips or documents of rupture).
I voluntarily set aside (for the moment) cases of referral concerning the termination of the employment contract since this assumption excludes referral.
It is therefore logical that in the face of a clear breach by the employer, the court has no choice but to grant the employee's demands, which explains the high percentages found (71% and 81% ). Regarding the interim, the percentage of rejected applications is often the employees (poorly counseled or defending themselves) who seize the referral of a dispute while the latter is obviously incompetent to review (especially where there is a serious challenge).
What more to say if it is also, and this is important, that the figures announced also include (and especially) cases where the employee was partially successful. Thus, an employee who formulates several pecuniary claims and wins a case on only one for a derisory amount is still statistically considered to have had his requests favorably received by the court.
This is the sad reality that shows that these figures are not reliable.
As said, a few months ago, one of my colleagues on his blog, at the risk of shooting himself in the foot, the statistics (always the same) show that as a rule, a litigant gets more often only in favor of a lawyer. This is to forget the most important: the lawyer obtains, before the Labor Court, less often than a single employee what he asks because often his claims are more complex, more numerous and of a higher as I have been able to recall in this article , which is reflected on the part of the prud'homaux advisers by a certain reluctance to render a legally correct decision (when they are aware of it) but with financial consequences sometimes heavy for the employer.
However, the application of the law can (in principle) allow the spreading of moods. This is the whole problem of the place of equity in the law that my sister Marie-Laure Fouché mentioned in this article . And of course, as you might expect, non-professional magistrates love to slip equity in their decision, often at the risk of making the latter totally absurd legally.
To drive a little more nail, let us come to the figures mentioned about the appeal and the content of the decision of the court of the second degree.
Three out of four labor tribunal judgments are subject to a remedy, that is to say, conversely, in only one out of four cases, the decision of first instance becomes final. Let's bring this "one in four" of the "one in five" of the business that goes out of tiebreaker and let's take the leap. We would be tempted to deduce that in fact only a very small part of the labor tribunal decisions made by the labor councilors alone does not involve any recourse, the vast majority being appealed or, more rarely of an appeal.
You could tax me in bad faith by retorting me that anyway, these decisions of first instance were mostly confirmed on appeal (54.8%) or cassation (80.1%).
On the one hand, the percentage of confirmation on appeal seems very low: one judgment out of two is. On the other hand, it is to forget, once again, that one can make say what one wants to statistics: the majority of the confirmations are partial confirmations and which says partial confirmation, said partial reversal. But the statistics are not fine enough to make the distinction here.