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Dismissal under French law

Publié le : 16/05/2011 16 mai mai 05 2011
Entreprises / Ressources humaines / Discipline et licenciement

Employment at will does not exist in France. So, you may only dismiss an employee for specific reasons. The specific reasons must be recognized by French Law or French case law.

Employment at will does not exist in France.
So, you may only dismiss an employee for specific reasons.
The specific reasons must be recognized by French Law or French case law.

If the dismissal is challenged by an employee, the company will have to prove that dismissal was based on "genuine and substantive grounds".

Also, employers need to be careful about applicable dismissal procedures.


FORMAL RULES APPLICABLE TO DISMISSAL

Dismissal procedure is strict under French law.

Indeed, non compliance with applicable procedural rules is very often enough to claim damages even though the employer had proper grounds to dismiss the employee.
Except for a few economic dismissals procedures, there shall be a preliminary interview with the employee.

The employers shall:

- Give written notice, calling the employee to a preliminary meeting. This notice must mention several pieces of information such as possible assistance for the employee during the preliminary interview. There must be a full 5-working-days delay between the notice and the interview itself.

- During the preliminary interview, the employer explains the reasons for the contemplated dismissal and listens to his employee's remarks. The employer shall make no statements as to his decision regarding dismissal. The employer may be assisted by one of his employees but cannot be represented by someone who's not part of the company.

- Following a full 2-working-days delay after the interview, the dismissal letter is sent by registered mail. Termination letter shall mention reasons for dismissal. Both content and form of the letter are important.

Specific formal rules apply to protected employees: Union representatives and more generally employees having a representative function for their colleagues are protected against termination.

Only after obtaining state authorization, the employer may dismiss the employee.

Also, an employee, victim of a work-related disease or accident, benefits additional formal rules before being dismissed.

Upon delivery of dismissal letter, notice period will start. Such notice period generally varies between one and three months depending on the employee's status.

In case of gross misconduct, dismissal is effective without notice period when sending the dismissal letter.



POSSIBLE GROUNDS FOR DISMISSAL

Usually, one makes a distinction between dismissal for personal reasons and dismissal for economic reason.

I. DISMISSAL BASED ON PERSONAL REASONS

Personal reasons are the followings:

1. disciplinary dismissal

2. dismissal on account of long term absence (sickness)

3. dismissal on account of physical or mental incapacity to work

4. dismissal on account of incompetence


A. Disciplinary dismissal

An employee's contract may be terminated if he has committed a fault.

Typical faults are theft, misconduct with colleagues, absences without legitimate reason, etc...

Depending on how important the fault is, there are 3 kinds of disciplinary dismissals:

- Dismissal for "regular" fault (faute simple)

- Dismissal for significant fault (faute grave)

- Dismissal for heavy fault (faute lourde)

Specific procedures may apply to disciplinary dismissal depending on applicable collective bargaining agreements.

Termination letter "freezes" the grounds of dismissal. So, any additional reason to dismiss that does not appear in termination letter will be denied in case of litigation.

There is a 2-months statutory limitation: Employers cannot dismiss employees, if the facts were known for more than 2 months.

Dismissal for "regular" fault (faute simple).

Dismissal for regular fault implies that the fault is serious enough to justify dismissal.

When an employee illegitimately refuses new work conditions, his employer may dismiss him/her based on a regular fault.

The employee will benefit the following rights in case of dismissal for "regular" fault:

1. Notice-period depending on his seniority and his grade.

2. A severance pay based on his average salary and his seniority.

3. An indemnity compensating holidays that were not taken.


The employer may ask his employee to stay home provided he gives equal compensation for the notice period.

In case of litigation, jurisdictions will check that dismissal is appropriate, taking into consideration previous sanctions and other possible sanctions (warning, disciplinary suspension, etc...)

Jurisdictions may either:

1- Confirm dismissal,
Or
2- Disapprove dismissal and allow damages for wrong termination.

Dismissal for significant fault (faute grave)

Significant fault means that the employer cannot keep the employee during notice period (for exemple:brawl during working hours).

Consequences of dismissal for significant fault are:


1. No notice period;

2. No severance pay.

3. Just an indemnity compensating holidays that the employee had not still taken.


Jurisdictions may either:


1. Confirm dismissal,
Or
2. Lower the sanction and qualify the dismissal for"regular fault" instead of significant fault and allow:

o Indemnity compensating the notice period

o Severance pay.

Or
3. Disapprove dismissal and allow:

o Damages for wrong termination

o Indemnity compensating the notice period

o Severance pay.


Dismissal for heavy fault (faute lourde)

When an employee aims at harming the company he works for, this is a heavy fault.
Jurisdictions rarely confirm dismissal for heavy fault.
For example, an employee setting intentionally fire to his office commits a heavy fault.
Stealing one's employer is usually not enough to qualify as a heavy fault but qualifies as a significant fault.

Being dismissed for heavy fault means being deprived of the following rights:
1. Notice-period.

2. Severance pay.

3. Indemnity compensating holidays that were not taken.

Also, dismissal for heavy fault is the only way to claim damages against the dismissed employee.


B. Dismissal on account of long term absence

An employee continuously on sick leave, who cannot be replaced easily, may be dismissed.

Collective bargaining agreements often set forth protection periods against dismissal on account of disorganization due to sick leave (6 months for example).

However, the end of the protection period doesn't mean unconditional authorization to dismiss.

Jurisdiction will check that replacement was absolutely necessary.

Important functions and difficulties for temporary replacement are the usual criteria for such dismissal. The employer will have to be able to proove that he has hired a new employee to replace other one.


The employee will benefit the following rights in case of dismissal for long term sickness:


1. Notice-period depending on his seniority and his grade, if the employee is capable to work.

2. A severance pay, determined based on his average salary and his seniority.

3. An indemnity compensating holidays that were not taken.


C. Dismissal on account of physical or mental incapacity to work


French Law established "work doctors" who are in charge of checking work conditions and ability to work.

Work doctors examine employees at the beginning of contract, the once a year, after certain sick leaves and any time the employee or the employer wish.

An employee may be declared unable to carry on his job and, if so, any job in the company.
In such case, the employer shall search another appropriate job to avoid dismissal.
Only after vain searches, the employer may dismiss his employee.
Specific rules apply when such incapacity is a consequence of a work-related disease or accident (Asbestos, fall at work, etc...).


D. Dismissal on account of professional incompetence (insuffisance professionnelle)


An employer may dismiss an employee who does not manage to fulfill his missions.

However, jurisdictions check that such incapacity to fulfill contractual mission only results of the employee's incompetence.

Consequently, one should not mix up professional insufficiency with:

- economic crisis;

- tougher work conditions;

- lack of education that an employer should have provided.

- Etc...


II. DISMISSAL BASED ON ECONOMIC REASONS


Termination of contract based on economic grounds shall meet the following criteria:

* Dismissal shall not result of personal reasons,


* Dismissal shall result of the job's suppression, transformation or modification when the latter are refused by the employee.

* Dismissal shall rely on one of the following specific economic situations :

o Economic difficulties or technological changes,

o Reorganization to remain competitive,

o Termination of business when such termination is not due to the employer's fault.

The employer shall prevent economic lay-offs and shall make every effort to educate employees, to adapt and to search alternative jobs within the company before termination.

Alternative job offers shall be precise and individualized.

If the employer belongs to a group, search for alternative jobs should be extended to the whole group even abroad.
Employers may restrain their search by asking employees if they would accept a job abroad.
Alternative jobs may consist in part time jobs, fixed-term contract.
Employer shall ask for his « employees committee »'s( comité d'entreprise) opinion regarding possible policies to prevent lay-offs.

When starting economic lay-offs, an employer shall choose jobs concerned by such dismissals.

Applying criteria, each concerned employee shall be ranked within termination procedure to determine who will be dismissed.

Criteria are determined by collective bargaining agreements and, if not, by the employer in compliance with law.

Criteria shall respect the followings:

- family responsibilities (dependants)

- seniority

- any specific situation that would make the employee's job search tougher (handicapped employee, old employees)

- professional ability

There are specific procedural rules depending on how many jobs will disappear.
If it's an economic termination of only one person, there are few specific rules.
From 2 to 9 economic dismissals, the employer shall request his employee's representative's opinion regarding contemplated dismissals and the procedure.

Beyond 10 economic dismissals on a 30-days period, procedure will vary depending on how big the company is (more or less than 50 employees before dismissals).

Beyond a 50-employees staff, the employer shall not only request his employees' representatives' opinion regarding the procedure but also regarding a plan to save jobs (Plan de sauvegarde de l'emploi).

There shall be 2 meetings with employees' representatives.

Specific rules apply to dismissals in case of bankruptcy.

For dismissals regarding specially "economic reasons" and "physical or mental incapacity to work", we firmly recommand to seek advice from a lawyer. For other reasons for dismissal, it is also prudent to seek advice.



L'auteur de l'article:

Bertrand WAMBEKE, Avocat à Lille.



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