A French employee employed in Morocco by a British company. Brain teaser

(BRUSSELS2) Can a British group which employs a Frenchman in Morocco, after having employed him in France, be prosecuted before a French Labor Court? The question seems absurd. But, with the opening of the markets, this type of litigation is developing. The case was brought before the European Court of Justice for an employee dismissed by the pharmaceutical group Glaxosmithkline.

According to the Advocate General of the Court, who has just given his opinion, when the employee was first employed in the French subsidiary of the group, before being transferred to the British subsidiary, and that the two successive employment contracts are linked in one way or another, the employee can – in accordance with the Brussels Convention – seize the court of his choice, for example that of his place of residence. However, the Advocate General sets out a series of criteria which, in practice, seem difficult to fulfill and particularly restrictive: conclusion of the second contract envisaged during the first contract, modification of the first contract by the second contract, organic or economic link between the two employers, agreement between the two employers providing a framework for the two contracts, management power of the first employer over the employee or decision on his duration of activity with the second employer... (To see the  conclusions of January 17).

Small comment: it is surprising that the Advocate General did not mention, at any time, the directive of 12 March 2001 on the maintenance of workers' rights in the event of transfers of undertakings which organizes a certain solidarity between the two employers and the conditions for the transfer of the contract. Even if the “transfer” of the employee, between the two subsidiaries of the same group, did not fulfill all the conditions of this directive, it would have been logical to draw inspiration from the principles which govern this directive.

(NGV)