Recently, in a ruling from October 23, 2024 (n°022-19726), the Court of Cassation reminded that if the employer fails to complete all the required formalities for implementing or modifying an internal regulation, a union can request the suspension of the regulation through a summary procedure. Only employees can invoke its unenforceability.

This is an opportunity to reiterate the principles of implementing an internal regulation within the company.

Indeed, the implementation of an internal regulation is a crucial step for any company, as this document helps define the operational rules and outlines the rights and obligations of employees within the company, particularly in areas of health, safety, and discipline. Since January 1, 2020, it has been mandatory for all companies with at least 50 employees.

If not implemented, the employer faces criminal sanctions and is limited in exercising their disciplinary power.

When is the Internal Regulation Mandatory?

Before January 1, 2020, the implementation of an internal regulation was mandatory when a company employed at least 20 employees. However, since January 1, 2020, the implementation of an internal regulation has been mandatory as soon as the company employs at least 50 employees for 12 consecutive months.

Companies with fewer than 50 employees may also choose to implement an internal regulation.

Be aware that if the company has multiple establishments, it is necessary to determine whether the 50-employee threshold is met at the company level and at the establishment level:

  • If no establishment has 50 employees, the internal regulation must be implemented at the company level.
  • Once an establishment has 50 employees, the regulation must be implemented at the establishment level to account for specific characteristics. However, it is accepted that if the working conditions are the same across establishments, the internal regulation can be identical for each establishment.

What Should the Internal Regulation Contain?

The internal regulation is governed by law.

Its purpose is to set:

  • The measures for the implementation of health and safety regulations within the company or establishment;
  • The conditions under which employees may be called upon, at the employer’s request, to contribute to restoring work conditions that protect the health and safety of employees, should they appear to be compromised;
  • The general and permanent rules related to discipline.

It must also establish and recall:

  • Provisions related to employees’ defense rights in disciplinary procedures (articles L. 1332-1 to L. 1332-3 of the French Labor Code);
  • Legal provisions on moral harassment (L.1152-1 to L.1152-6 of the Labor Code), sexual harassment (L.1153-1 to L.1153-6 of the same code), and sexist behavior (L.1142-2-1 of the same code);
  • Protection for whistleblowers;
  • Guidelines for health and safety;
  • Rules related to discipline (nature and scale of sanctions).

It is possible to include clauses that limit employees’ rights and freedoms, as long as they are justified by the nature of the task to be performed and proportionate to the intended purpose.

For example, the internal regulation cannot prohibit marriage between employees, or the use of searches or breathalyzers under all circumstances.

However, clauses that restrict the freedom to manifest one’s religion, provided they are proportionate and justified by the nature of the position (neutrality clause), as well as the prohibition of alcohol consumption and punishment for being under the influence for employees in high-risk positions, are allowed.

In general, clauses that restrict employees’ rights must be carefully and precisely written to be valid. It is highly recommended to seek the support and advice of a law firm.

What is the Procedure for Implementing the Internal Regulation?

The internal regulation is a document unilaterally established by the employer.

It must be written in French but can be accompanied by translations in other languages.

If the company has employee representatives, the internal regulation must be submitted for the opinion of the Social and Economic Committee.

This is a simple consultation but is mandatory. If the employer fails to submit the regulation for the opinion of the Committee, the internal regulation cannot be enforced against employees.

In the absence of employee representatives, the employer must be able to justify this by providing a report of the lack of representatives from the last elections.

The internal regulation must be sent to:

  • The labor inspection, in two copies, along with the opinion of the Social and Economic Committee;
  • The clerk’s office of the Labor Court of the company’s or establishment’s location.

It must also be posted in the company’s premises and/or published on the company’s intranet and communicated to all employees.

The employer must be able to prove that the internal regulation has been made known to the employees. Therefore, it is recommended to send an email to existing employees and provide new employees with the internal regulation upon hiring, as an appendix to the employment contract.

The internal regulation comes into effect in the company one month after the last formal step is completed, whether it is the submission to the labor inspection or the labor court, or the communication to the employees.

How to Modify the Internal Regulation?

Any addition, modification, or correction to the internal regulation requires the same formalities as the original implementation.

Failure to comply with these formalities will make the new version unenforceable against employees.

However, if the modification was imposed by the labor inspector, consultation with the Social and Economic Committee is not required. Only the submission and publication formalities need to be completed.

What Are the Consequences of Not Having an Internal Regulation or Failing to Follow the Proper Procedure?

In the absence of an internal regulation:

  • The employer’s disciplinary power is limited since they cannot impose any sanction other than dismissal;
  • The company is liable to a fourth-class fine.

If the procedure for implementation is not followed:

  • The internal regulation is not enforceable against employees, and any sanction other than dismissal is null and void;
  • The company is liable to a fourth-class fine;
  • A trade union organization may seek the suspension of the internal regulation through a summary procedure (Cass. Soc. 23/10/2024, n°22-19726).

LBV AVOCATS is available to assist you with your procedures.