Among the gateways imagined by the public sector to enable its employees to work in the private sector, secondment is a very popular formula. Indeed, it has numerous advantages: the company can maintain the relationship over time (“long-term” secondment can be renewed indefinitely). As for the public sector workers, they can enhance their professional experience and receive attractive remuneration while maintaining their retirement and promotion rights in the assured knowledge that they will, eventually, return to a position at their grade.
The Public Sector Code even goes as far as extending the benefit of provisions in the Labour Code and the collective bargaining agreement applicable to the position held (Article L. 513-3 of the General Public Sector Code). Only provisions relating to compensation for termination of contract are not applicable. As compensation for dismissal is consideration for the employer’s right to put an end to the employment contract (Court of Cassation, labour division, 27 January 2021, n° 18-23.535), it is difficult to understand that expiration, which brings about natural termination of the secondment, has the same effect as a dismissal.
These two, very different worlds have difficulty in adjusting to one another from a legal point of view and the result is sometimes a real shock for the company.
Is the seconded public sector worker a company employee during his secondment?
Just how far do the rights of the public sector worker go during his secondment? Does he become a company employee?
There are no provisions for this. But if the company has to contest the existence of an employment contract, its chances of success before an industrial tribunal would be infinitesimal.
Why the industrial tribunal? Wouldn’t the company have more luck before an administrative court? Unfortunately, it doesn’t have the choice: relationships between the seconded public sector worker and the company are governed by private law (Disputes Tribunal, 24 June 1996, n° 03031).
Then, it’s pointless hoping to escape a sanction by citing the rule according to which it is forbidden for public sector workers to carry out a more lucrative activity in the private sector. This argument will be rejected precisely on the grounds that this interdiction does not apply in cases of secondment.
On the other hand, the courts are mindful of the fact that the company (i) pays the seconded public sector worker, (ii) guides, organises and assesses his work, (iii) authorises his paid holidays, and/or (iv) disciplines him. All these aspects taken as a whole describe an employment contract.
So there is a double penalty for the company: not only does it have to acclimatize to public law regulations (and especially with the complexities surrounding pay), but it must also offer the seconded employee the same rights as its other employees. Recognition of an employment contract implies that the seconded public sector worker can participate in workplace elections and become a member of the economic and social committee (CSE) or a trade union representative if he does not have executive duties. He can benefit from all the bonuses set out in the national bargaining agreement, retroactive overtime hours and compensation if the company puts an early end to his secondment without giving the reasons for this decision in writing. In the latter case, however, it could be thought that the prejudice linked to the loss of employment would be mitigated insofar as the public sector worker can return to his original entity without experiencing any period of unemployment.
Questionable assimilation to employee status
Assimilation of the seconded public sector worker as an employee is nevertheless difficult to understand and is sometimes even rather questionable, in our opinion.
First of all, this assimilation does not take into account the specific nature of the secondment. The public sector worker’s length of service continues to run as does his career advancement. This particularly avoids the public sector worker being subjected to a decrease in remuneration and/or dropping back down the career ladder when he returns to his original entity, even after 20 years. Better still, he continues to contribute to and be eligible for benefits under the public sector retirement scheme. If he commits an act of misconduct during his secondment, the administration may invoke this and sanction him. He is not assessed by the host company as this prerogative belongs to the administrative department of his original entity. The host company can provide “feedback” with regard to his performance that is sent to the administrative department of his original entity. The nuance is very slight, but it does indeed exist. The seconded public sector worker is not, therefore, an employee like the others.
Then there are situations in which the seconded public sector worker is not truly integrated into the company: he reports to a line manager who is, himself, seconded from the public sector. To a certain extent, seconded public sector workers are an organisation within the organisation, with specific missions that do not have any equivalent among the salaried positions. Sometimes, the company doesn’t even have any room for manoeuvre when negotiating the remuneration of the public sector workers that they host. The remuneration package is established by a multi-annual agreement entered with the administrative department of the original entity and refers to the index-related schedule, in other words to the salary received in the public sector. Given these circumstances, the relationship of subordination with regard to the company is very remote, if not inexistent.
Not to mention case-law inconsistencies. For example, the rule according to which employment contracts are maintained with the transferee in the event of any business transfer (Article L. 1224-1 of the Labour Code) does not apply to seconded public sector workers on the grounds that the person to whom the public sector worker is seconded constitutes a determining factor in the secondment that can only be modified by the administrative department having power of appointment (Court of Cassation, labour division, 8 April 2014, n° 12-35.425).
Pending legal clarification of this status, it’s advisable to handle the relationship with caution
In our opinion, it would be simpler to impose a minimum set of fundamental rights, a sort of red line that must not be crossed (harassment, discrimination, rest, holidays, right of defence, etc.) without going as far as recognising the existence of an employment contract. This solution already exists in the case of student-trainees, for example. Certain rules in the Labour Code are applicable to them (harassment, discrimination, etc.), although they are not bound to the company through an employment contract. Ditto for the right to strike that is enjoyed by public sector workers.
Needless to say that, until lawmakers clarify the situation of seconded public sector workers, it is recommended that companies err on the side of caution by modelling their treatment on what exists within the company for permanent employees.