Discipline, scale of sanctions, rights of defence, health and safety: the internal rules set out how life in the business is governed. Mandatory from twenty-five employees, they are valid only if a precise procedure has been followed, and a sanction they do not provide for may be annulled by the court.
What are internal rules?
They are a written document in which the employer must set out (Article 211.3):
- the general and permanent rules on discipline;
- the nature and scale of the sanctions that may be imposed;
- the procedural provisions that guarantee the rights of defence;
- the health and safety rules applicable in the business or establishment.
They apply to all employees of the business or establishment.
Are they mandatory?
Yes, in all businesses and establishments that normally employ at least twenty-five employees (Article 211.1).
A business is any organisation, whatever its legal form (company, association, trade union, sole proprietorship), that produces, distributes or provides services. An establishment is a place where a group of people regularly work together under the direction of the same authority; a business may have several (Article 211.2). A business may therefore adopt common rules, supplemented by provisions specific to certain establishments.
An employer who fails to draw up internal rules when required to do so, or who does not follow the rules for drawing them up, is liable to a fine of 500,000 to GNF 2,000,000 (Article 523.25).
Why they matter even below the threshold
The internal rules determine the power to impose sanctions: the employer may impose only a sanction mentioned in the internal rules (Article 212.3). The court annuls a sanction that does not appear in them (Article 212.5).
Where internal rules are not mandatory and do not exist, the employer may impose, depending on the seriousness of the misconduct, only a warning, a reprimand, a suspension of no more than six days, or dismissal with or without notice (Article 212.3). A business with fewer than twenty-five employees that wants a more finely graded scale of sanctions therefore has an interest in adopting internal rules.
How are they adopted?
1. Drafting by management
The internal rules are drawn up by the management of the business or establishment (Article 211.6), with the mandatory clauses and without any prohibited clause.
2. Opinion of the trade union delegates
The draft is submitted to the trade union delegates for their opinion, and they send their comments in writing within fifteen days. Failure to reply within that period counts as acceptance (Article 211.6).
The Code does not specify whether these fifteen days are working or calendar days. To be safe, count them as working days before moving on to the next step.
3. Review by the labour inspector
The draft, together with the delegates’ comments, is submitted for review to the labour inspector. The inspector may require mandatory clauses to be added and prohibited clauses to be removed or amended (Article 211.6). The inspector has thirty working days from submission of the rules (Article 211.7).
4. Possible appeal to the Inspector General of Labour
If the inspector requires an amendment, the employer may appeal to the Inspector General of Labour within the thirty working days following the inspector’s decision. The Inspector General rules within thirty working days; failing that, the inspector’s decision ceases to have any effect and the rules may be posted without amendment. If the Inspector General rules within that period, or if the appeal is not admissible, the employer amends the rules before posting them (Article 211.8).
5. Filing and posting
The rules are filed with the registry of the court with jurisdiction over labour matters or of the nearest court, then posted on the business’s premises (Article 211.7). They are posted in a suitable and easily accessible place, in the workplaces as well as in the hiring premises and at their entrance, and the text must remain legible (Article 211.10).
6. Entry into force
The internal rules apply one month after the day they are posted (Article 211.7).
Which clauses are prohibited?
The internal rules, like any unilateral act of the employer, may not contain (Article 211.4):
- any provision on mobility or loss of employment, except for suspensions, transfers, demotions and dismissals imposed as disciplinary measures;
- any provision on a non-compete obligation.
Such clauses are deemed unwritten. Clauses that remove or limit the rights employees derive from the law, regulations or collective agreements are also void (Article 211.5).
What about internal memos?
Any act of the employer that lays down general and permanent rules for the business, an establishment or part of an establishment follows the same procedure for drafting, review and publication as the internal rules (Article 211.11). A service note that creates a lasting disciplinary rule without going through this process is therefore vulnerable to challenge.
Do they need to be updated?
Yes. When the law, regulations or the collective agreement change, the employer must revise the internal rules; otherwise, the labour inspector may give formal notice to do so. Even without revision, clauses that have become contrary to the new rules are void from the day they cease to comply (Article 211.5).
Can they be challenged?
After posting, challenges to their lawfulness are brought before the court with jurisdiction over labour matters. It may order clauses to be removed or added and draw the consequences of a clause being void in the dispute between the employer and the employee (Article 211.9).
GHR best practice
- Count the normal headcount of each establishment to find out whether internal rules are mandatory.
- Check that the scale of sanctions covers every measure the business wants to be able to take.
- Exclude any mobility or non-compete clause, and any clause limiting employees’ rights.
- Keep proof of each step: delivery to the delegates, submission to the labour inspectorate, filing with the court registry.
- Date the posting (official record, dated photograph): it sets the date of entry into force.
- Put lasting internal memos through the same process as the internal rules.
- Review the internal rules whenever the law or the applicable collective agreement changes.
