We have already discussed the judgment of 8 February 2013 in which the Paris Employment Tribunal applied employment rights to a prisoner.
The Metz Employment Tribunal was recently faced with a similar case, in which a prisoner who worked during his detention for a company in the Sodexo group under a concession contract with the prison, claimed, among other things, backpay of his salary. The prisoner claimed the difference between the payment actually received (an average of €3.13 per hour) and minimum wage.
At the request of the prisoner, the Employment Tribunal referred a Priority Question on the issue of Constitutionality (“QPC”) to the High Court, as follows:
“Insofar as Article 717-3 of the Penal Procedure Code states that ‘working relations of incarcerated persons do not amount to contracts of employment’, does this affect the rights and freedoms guaranteed by the Constitution, particularly rights guaranteed by paragraphs 5, 6, 7 and 8 of the Preamble to the Constitution of 27 October 1946?”
The paragraphs of the Preamble to the Constitution of 27 October 1946 targeted in the QPC grant the right to obtain employment, the right to join a union, the right to strike and the right to collective bargaining.
In a ruling on 20 March 2013, the High Court agreed to refer the QPC to the Constitutional Council. The High Court found that Article 717-3 of the Penal Procedure Code did apply to the dispute, and that it had never been declared as being in compliance with Constitution. It also considered that the question raised was a serious one.
The Constitutional Council has three months in which to respond to the question.
In this case, it is the future of prisoners’ jobs which is at stake. If the claim is upheld and it became necessary to pay prisoners the national minimum wage, then it is not hard to guess that employers like Sodexo would sooner pay that figure to those without criminal convictions. That would do enormous damage to the benefits of training and rehabilitation which concession contracts like this can bring for the prison population.