In a time of ultra-connected communication tools and work from home, the access rights of a France-based company’s works council (WC) to its electronic and internal communication resources is a necessity now more than ever. However, at present, there is no legal provision regulating or allowing the use of employer-owned communication tools by a WC. It is up to the employer to be proactive in supervising the WC’s use of such communication tools to avoid the establishment of practices that could be prejudicial to the organization.
The members of a WC must have sufficient leeway to exercise their freedom of speech, carry out their missions, and fulfill their obligations (e.g., information and collective expression of employees, obligation of transparency) without being subject to any prior control by the employer.
The current provisions of the French Labor Code relating to the communication tools of the WC [1] were not modified when this institution was established by the Macron ordinances of 2017 and as such are now outdated.
Only notice boards are envisaged as a way of providing written information:
« Members of the works council may display the information they are responsible for bringing to the attention of staff in the places designated for trade union communications, and at the entrance to the workplace. »
The French Labor Code requires that the WC notice boards must be distinct from those used for trade union communications. [2]
Failure to provide notice boards to the WC represents an obstruction to the regular functioning of the body and may justify legal action by the WC to force the employer to comply with its obligations. In practice, these notice boards must allow, in particular, the display of meeting minutes to keep employees informed of the issues discussed. [3]
In addition to written communications, the WC can organize at its premises staff information meetings [4] to discuss, for example, “current issues.” The employer has no control over the content of these meetings, which must be held outside of working hours, unless otherwise agreed to with the employer.
Additionally, the WC members can get in contact with employees at their workstations [5] provided that this communication does not cause any disturbance to the company or the employees’ work.[6]
For any other method of communication within the company (notably electronic) or that could be related to the professional activity, the employer’s consent is required. In particular, the WC members cannot send information to the employees’ work emails without the employer’s agreement. [7]
In this era of work from home and the digitalization of companies’ activities, the French Labor Code’s provisions in this area thus give an outdated image of the law.
The WC has the freedom to communicate outside of the company without being subject to any control or right of scrutiny from the employer, such as through the use of new digital tools.
The WC benefits from a wide liberty of choice, [8] including the creation of an ad hoc email address, WhatsApp chat loops, diffusion list to personal emails, websites, standard templates and annual communication calendars, and dedicated apps; however, a WC’s options may be limited by its operating budget.
Subject to compliance with the general principles governing the exercise of freedom of speech, [9] only two limitations apply to the WC’s communications outside the company: (1) the target audience must be employees of the company and (2) the published content must comply with the obligations of discretion, confidentiality, and professional secrecy to which the staff representatives are bound. [10] The members of the WC who breach these obligations may be liable for disciplinary sanctions (warning or disciplinary suspension) and civil [11] or criminal [12] liability.
Further, when defining their communication methods and tools, staff representatives must ensure that they comply with regulations on the protection of personal data and, in particular, collect the information that is strictly necessary and obtain consent for its use. Employers are under no obligation to provide staff representatives with personal information about employees such as their address or personal telephone number.
This great freedom granted to the WC in the exercise of its freedom of speech outside the company may present a risk for the employer: no control over communications (or even any assurance of being aware of the WC communications), risk of breaches of confidentiality and IT security, etc.
The obsolescence of the legal texts relating to the use by the WC of the company’s communications tools, on the one hand, and the wide freedom given to members of the staff delegation in the use of nonprofessional communications tools, on the other, can only encourage the employer to take a proactive approach in this area.
Management can negotiate on this issue either within the framework of an in-house collective agreement or within the framework of the internal rules of the WC, or even by means of a unilateral decision, on the conditions for the use of internal communication tools by the WC. [13]
However, it is worth noting that employers can take legal action against clauses that impose obligations on them that are not set out in the Labor Code.
The WC and its members will not have access to a company’s electronic communication tools without prior discussions with the employer. Contrary to what is provided for trade union communication (intranet), the WC has no right of access to these new means of communication.
The French Labor Code leaves it to a company agreement to define the conditions for the transmission of trade union information via internal communication tools. [14] In the absence of an agreement, trade union organizations present in the company—meeting the criteria of respect for republican values and independence and which have been legally constituted for at least two years—may distribute publications and leaflets on a trade union website accessible from the company intranet if one exists. The employer is therefore encouraged to negotiate.
The provisions of the collective agreement are to be interpreted strictly; if the company agreement only authorizes access to electronic messaging to enable representatives to correspond with each other or with management or to answer individual questions from employees, the sending of informative replies to the entire workforce may give rise to sanctions. [15]
Trade union organizations are free to use communication tools external to the company. However, this freedom of electronic communication is subject to restrictions and may not lead to the disclosure of confidential information that could infringe the rights of third parties. An employer may therefore request the deletion of external communications containing confidential information.
[1] Article L. 2315-15 of the French Labor Code.
[2] Article L. 2142-3 of the French Labor Code.
[3] Article L. 2315-35 of the French Labor Code.
[4] Article L. 2315-26 of the French Labor Code.
[5] Article L. 2315-14 of the French Labor Code.
[6] Cour de cassation, Chambre sociale, 2 February 1972, No 71-40.102.
[7] Cour de cassation, Chambre sociale, 25 January 2005, No 02-30.946.
[8] Article D. 2315-38 of the French Labor Code.
[9] Prohibition of defamatory or insulting comments, respect for privacy, prohibition of comments inciting racial, ethnic or religious hatred, etc.
[10] Article L. 2315-3 of the French Labor Code.
[11] Cour de cassation, Chambre sociale, 15 June 2022, No 21-10.336; 6 March 2012, No 10-24.367.
[12] Article 226-13 of the French Criminal Code.
[13] Articles L. 2315-2 and L. 2315-24 of the French Labor Code.
[14] Article L. 2142-6 of the French Labor Code.
[15] Cour de cassation, Chambre sociale, 12 July 2017, No 15-27.742; 20 September 2018, No 17-21.099.