• Insights

Withdrawal from a work situation versus the right to strike

Written by
Capstan Avocats, the law firm setting the benchmark for labour law in France.
This article sets out some legal insights into an exceptional social movement that occurred recently in France, claimed as a ‘right of withdrawal’ in the rail transport system, which created major disruption.  

Between 18 and 21 October 2019, following an accident between a regional train and a lorry at a level crossing in the North of France, French train drivers (between 700 drivers according to the SNCF management and 17,000 drivers according to the CGT union) refused to keep working since they considered themselves in danger.

This movement spread so widely and rapidly around the country that rail traffic was severely affected, on the eve of the French half-term holiday.

Was this right of withdrawal, which affected thousands of travellers, justified under French law?

The question can also apply to other countries in Europe, since Council directive 89/391 provides protection to workers ‘who, in the event of serious, imminent and unavoidable danger, leave their workstation and/or a dangerous area.’

In the French Labour Code, article L 4131-1 states that the worker should immediately alert the employer to any situation that he or she can reasonably consider to present a serious and imminent danger to his or her life or health. The employee should also alert the employer to any default that he or she notices in the protection systems. He or she can withdraw from such a work situation.

The employer cannot ask the employee to go back to work after the use of such a ‘withdrawal right’ if the danger still exists, particularly due to a fault in the protection system.

The collision on 16 October 2019 had cut all the alerting equipment, forcing the slightly injured driver, to walk around one kilometre along the railway line, in order to raise the alarm, leaving behind 70 passengers alone in the train. The drivers and later the CGT union representatives complained that, unlike in earlier times, the regional train did not have a ticket inspector on board. They argued therefore that train drivers were in danger and the drivers interrupted their work, even in trains which did have a ticket inspector on board (such as high speed trains).

The SNCF explained that the presence of a ticket inspector on board would not have improved the safety in this situation and that in the Paris suburbs area, trains have not had a ticket inspector on board for the last 30 years. Despite this, many train drivers only went back to work several days later.

The French government critised this unplanned social movement as being a ‘wild strike’ (unauthorised) and illegal. Indeed, in the public transport system, the law requires each future striker to declare him or herself at least 48 hours before going on strike. The management (bound by an obligation of public service) can then reorganise traffic for the passengers.

Under French law, this type of accident cannot justify a right of withdrawal for all the other drivers who operate a train without a ticket inspector. The absence of an inspector cannot be considered as a serious and imminent danger. The exercising of a right of withdrawal is even more debatable for those drivers who operate a train with a ticket inspector.

The analysis could have been different if a fault in the security systems had been identified for each driver who stopped working.

On the other hand, security and safety concerns could provide a valid reason for a strike but it would have to follow conciliation proceedings and the notice period imposed by French law for that sector.

A strike has already been announced at SNCF for 5 December 2019 by three unions, in the context of social upheaval resulting from the abolition of the special status accorded to railway drivers for new recruits from 1 January 2020. It is also a response to a controversial reform of retirement, which has a direct impact on the special regime applicable to train drivers and the opening to competition of the railway market at the end of 2020.

On 25 October 2019, the SNCF decided to implement various new security measures to improve the alerting system and procedures on regional trains.

Anne-Laure Périès
Partner - France
Capstan Avocats