An employee hired as an assembly-line worker was laid off for economic reasons. Some months later, she received a letter indicating that she could express her desire to avail of her priority right to reemployment, as the company needed temporary staff in light of additional work. The employee replied in the affirmative to the proposal made to her. Subsequently, the company took on two other former employees in posts of assembly-line workers which were not offered to her. She then took her case to the labour court requesting damages for a breach of her priority right to reemployment.
The Amiens Court of Appeal upheld the employee’s applications. The company appealed the decision. It claimed that a desire to avail of the priority right to reemployment might possibly be implied from a reply to a request by the employer but that in this case the scope of the reply was necessarily determined by the terms of the question put to her by the employer. In this case, the employer believed that it had clearly restricted its question to the provision of temporary employment and that the employee’s reply could not therefore be equivalent to a request for a priority right to reemployment on a more general basis.
The Supreme Court rejected the company’s appeal. It indicated firstly that “the request to take up the priority right to reemployment may be presented either spontaneously or in reply to an invitation by the employer, provided that it is explicit”. It then approved the view of the Court of Appeal whereby the employee had applied to take up the priority right to reemployment after pointing out, firstly, that in a letter to the employee the employer had invited her to express her desire to avail of her priority right to reemployment, and proposed several posts to her and secondly that the employee had replied in the affirmative and opted for one of the posts offered (Supreme Court, Social Affairs Division, 11 April 2012, No. 11-11037).