French dismissals follow strict rules

first_imgRelated posts:No related photos. Roselyn Sands, of Paris law firmProskauer Rose, examines the strict rules that French employers have to complywith before they can end an employee’s contract and how legal action can resultif the company deviates from the established procedureUnder French labourlaw, the dismissal of any employee working under a French employment contractof undefined duration must be supported by a “real and serious cause” based onpersonal reasons or economic reasons. Moreover, the employer must comply withthe procedural rules for a dismissal.Substantive Rules forDismissalFollowing the employee’s trialperiod, dismissal of an employee must be justified. To satisfy the legalstandard for a real and serious cause, the cause for dismissal must be:– Objective, in that any grievanceagainst the employee must be concretely verified– Real, in that any reasonssubmitted by the employer in support of the termination must be established asfact– Precise, in that the reasonssubmitted by the employer in support of the termination must correspond to theactual cause underlying the termination– Sufficiently serious to justify atermination A dismissal for personal reasons maybe based on a variety of reasons, including insubordination, professionalincompetence, acts of disloyalty or failure to observe rules of security.A dismissal for economic groundswill only be justified based on serious economic difficulties of the company(and the group to which it belongs) or the necessity to restructure in order tomaintain a competitive position if it is at risk.Moreover, Article L 122-45 of theFrench Labour Code provides that an employee may not be sacked because ofsexual orientation, moral opinions, family situation, appearances, ethnicorigin, religious beliefs, trade union activities, political opinions or stateof health.Procedural Rules forDismissalFrench law requires that formalprocedures be followed when an employee’s contract is terminated. Theprocedures differ according to whether the termination is individual or collective.A collective dismissal is defined as a termination for economic reasons of twoemployees or more within a 30-day period.The procedure for an individualdismissal (for personal and economic grounds) begins when the employer sends aletter to the employee, calling him/her to a preliminary meeting, pointing outthe employee’s right to help during the meeting. In the talks the employer states itsgrievances against the employee and asks for reaction. The employee has, onthis occasion, the chance to explain him/herself. No decision regarding thedismissal should be stated at the meeting as the employer must respect awaiting period for reflection before making such decision. Following this minimum statutorynumber of days, the dismissal letter is sent by registered mail, return receiptrequested, setting out the precise reasons for the termination. The content andform of the letter are important, as the employer may not justify the dismissalon grounds that are not set forth in the letter itself.Thedismissal letter marks the beginning of the notice period, which generallyvaries between one and three months, based on the nature of the employee’sduties. However, if an employee is dismissed because of gross misconduct (fautegrave), the termination is effective immediately upon receipt of the dismissalletter. Insuch case, the employee is deprived of a notice period. A faute grave in Frenchlaw is defined as a cause for termination so serious that it renders thecontinuation of the employment agreement impossible. This would also be thecase for a termination based on conduct intended to harm the employer (fautelourde).Forcollective economic dismissals (defined as two or more employees within 30 days),the French Labour Code requires the consultation of personnel representativeson: the reasons for the proposed termination; the number of employees to beaffected; the professional categories to be affected; the order of terminationcriteria; and the provisional timetable for termination.Aworks council may request the assistance of an accountant, to be paid for bythe company, who will analyse the causes and effects of termination. Inaddition, the Labour Inspector must be informed and given the opportunity tocomment before the employer notifies the employee of his/her dismissal.Mostimportant, when termination involves more than 10 employees in a company withmore than 50 employees, the employer must present a social plan. The purpose ofthis is to demonstrate the efforts made by the company to avoid and limit thenumber of dismissals and to minimise the impact for those employees whosedismissal could not be avoided. This would include, for example, internal andexternal placement, job training and other out-placement services. Ifa company does not establish a social plan when required, or if the plan isinsufficient, the termination procedure, as well as the dismissals themselves,could be rendered void by a court. As a result, the process would begin fromground zero and dismissed employees would be entitled to reinstatement.Termination Indemnitiesand DamagesTheemployer may exempt the employee from performing his/her duties during thenotice period. In such case, the employee is entitled to a notice periodindemnity in lieu of salary. The employee is also entitled to a terminationindemnity, as provided by law and the company’s collective bargainingagreement. This indemnity varies according to the seniority of the employee,and whether the employee is a manager (cadre). The employee is entitled toaccrued vacation pay as well.Inaddition, the employee may institute legal action against the employer forviolation of the dismissal procedure and/or for anunjust dismissal. If the dismissal is held to lack a real and serious cause, anemployee with at least two years’ seniority is entitled to a statutorypresumption of at least six months’ salary as damages.Theemployee may obtain additional damages upon proof of the prejudice suffered;punitive damages are not available and are not recognised under French law.Inconclusion, the dismissal of an employee under French law, regardless of theemployee’s nationality, requires the observance of strict procedural andsubstantive requirements that vary depending on the reason for the termination,the number of employees to be terminated, the number of employees in thecompany and the presence of a works council or other employee representativeinstitutions.Editedby Clare Murray, employment law partner at Fox Williams and editor ofhrlaw.co.uk, Fox Williams’ online employment law information service French dismissals follow strict rulesOn 27 Mar 2001 in Personnel Today Previous Article Next Article Comments are closed. last_img