Dismissing an employee in France
Please note that the information herein is of a general nature and you should not act or refrain from acting on it without professional advice on the specific facts of your case. No liability is accepted by the author or Sykes Anderson Perry Limited in respect of this article. Employment law is a complex subject and the above is a basic outline only and is intended only as a general guide. Nothing herein constitutes financial advice.
In France if an employer wants to terminate an employment contract, he must be able to show a justifiable reason “cause réelle et sérieuse” and respect the dismissal procedures. These rules are of “public order” so employees cannot contract out of them. A dismissal can only be made by an employer and not a judge.
Dismissals are divided into two categories. They can be:-
(1) “Inherent to the person of the employee” i.e. a personal reason or
(2) “For an economic reason.
1 - Personal reason
According to article L1232-1 of the French Labour law code, any dismissal inherent to the person of the employee must be justified by a real and serious cause “cause réelle et sérieuse”.
The dismissal can be made for (1) disciplinary reasons i.e. fault of the employee or (2) outside any incorrect behaviour. If it is one of these two reasons, it cannot be discriminatory.
Fault of the employee: disciplinary reasons
The employer can dismiss an employee only if it is the result of the voluntary behaviour of the employee. The misconduct of the employee must not have been sanctioned by the employer.
There are various categories of misconduct:
- “Faute simple” or “simple fault”: This fault committed by the employee is not a “grave fault”. However, it can constitute a real and serious cause of dismissal. The simple fault could be an error or a carelessness action committed by the employee. An employee laid off for simple fault is entitled to receive severance pay, compensation for advance notice and compensation for paid leave.
- “Faute grave” or “grave fault”: The fault of the employee is considered as a “grave fault” when it makes it impossible for the employee to continue working in the company. Facts must be directly attributable to the employee. The “grave fault” means the immediate departure of the employee without any right to compensation for advance notice and dismissal. Examples are: harassment, violence and insults to the employer or the other employees.
- “Faute lourde” or “gross fault”: The fault of the employee is considered as a “gross fault” when it is committed with an intention to damage the employer. The employer must show the intention to damage. If not, the serious offence cannot be recognized. As for the “grave fault” the “gross fault” involves the immediate departure of the employee without any right to compensations of advance notice and dismissal but the allowance of compensation for paid leave remains payable.
Other personal reasons: no disciplinary reason
Certain facts although they are not guilty can constitute a real and serious cause “cause réelle et sérieuse” of dismissal:
Professional insufficiency: Inaptitude of an employee to perform his employment. The employee is not able to do the job. Because the employee does not commit a fault, the employer cannot dismiss him without respecting an advance notice (unlike the disciplinary dismissal).
Insufficiency of results: They should be fixed by realistic commercial objectives, fixed contractually or one-sidedly by the employer. This is similar to performance management in England.
Disagreement: Between the employee and the others. It must be attributable to the employee.
Personal life of the employee: As a rule this cannot constitute a reason for dismissal unless the behaviour causes a problem to the company. For example, not respecting a smoking ban.
2 - Economic reason
The economic reason is defined by the French labour law code as a reason (A) not inherent to the person of the employee (B) resulting from a suppression or a transformation of employment or a modification, refused by the employee of an essential element of the contract of employment, consecutive to economic difficulties (C) technologies transformations (D) reorganization (E) or cessation of activities.
As for the personal dismissal, the above must be shown to be a real and serious cause “cause réelle et sérieuse”.
Not inherent to the person of the employee
Only a reason not based on the person of the employee can have an economic nature. The employee’s age, refusal to accept new methods of work, physical inaptitude are not reasons for economic dismissal but for personal dismissal.
French case law does not require that the situation of the company is catastrophic but only that it is in real and serious difficulties. Difficulties which can justify a dismissal are characterized by indicators such as the reduction in orders or in the turnover.
The introduction of a new technology affecting the employment is an economic cause of dismissal even if the competitiveness of the company is not threatened. The French Supreme Court recognized it as an autonomous reason of dismissal. However the dismissal can be considered excessive if the employer did not try beforehand to adapt the job to the new technology.
Transfer of activities
The reorganization can be an economic reason only if it has been carried out for the protection of the competitiveness of the business.
Cessation of activities
The cessation must be total, definitive and must not result from a fault of the employer.
Procedure for dismissal
The employer who intends to dismiss an employee for a personal reason has to respect the procedures regarding dismissal. The stages to be respected are as follows:
1 - Summons of the employee in a preliminary interview
According to article L.1232-2 of the French labour code, the employer who intends to dismiss an employee has to summon him to an interview during which he explains him the reasons for his decision and obtains his explanations. This interview is compulsory, individual and preliminary in any decision.
A. The summons
The summons should be made by personally delivery or recorded delivery to prove the date of receipt of the letter. This is not compulsory but a sensible procedure. When the planned dismissal is not for a disciplinary personal reason, no deadline is imposed for the sending of the summons. In case of disciplinary reason, the summons must be sent at the latest 2 months from the date of the knowledge of the facts by the employer. The letter of summons must contain information as the reason for the interview between the employee and the employer, the date, the hour and place, and the option for the employee to be accompanied at the meeting.
B. Date and place of the summons
The date of the interview must be at least 5 working days after the receipt by the employee of the registered letter or the hand delivery of the letter of summons. The employee is not obliged to appear at the preliminary interview. His absence cannot be blamed on him. However, this absence does not prevent the following stages of the procedure. The interview has to be held in the place of work or at the head office of the company.
2 - Notification of the dismissal
The dismissal must be notified to the employee by a registered letter with recorded delivery at least 2 working days after the date of the preliminary interview. The letter, which must be signed by the employer has to express every reason justifying the dismissal and set out the rights and duties of each party. Within 15 days following the notification of the dismissal, the employee can, by registered letter with recorded delivery or letter delivered personally against receipt, ask the employer for explanations.
B. End of the contract
There are two different situations:
- If the employee committed a “faute lourde” or “faute grave”: the contract is immediately terminated
- In the other cases: the contract is not immediately terminated. The employer can dismiss the employee but with an advance notice.
Solicitor-Advocate and Chartered Tax Adviser