Dismissal

A dismissal cannot be done haphazardly. Indeed, it is a procedure governed by law and the Labor Code. Thus, an employer who wishes to dismiss an employee must be able to justify the reasons motivating the dismissal. Similarly, the procedure must also adhere to strict rules. To learn more, read the following lines!

What is a dismissal and under what circumstances can it be pronounced?

Unlike a mutual termination agreement, a dismissal is a unilateral decision made by the employer. It mainly aims to terminate the employee’s contract following objective and legitimate incidents. As you understand, a dismissal can only be pronounced if it is based on a real and serious cause.

Although the law has not precisely defined what is meant by “real and serious cause,” this implies consideration of certain criteria.

• The real cause: A dismissal must have an objective reason. In other words, the causes of such a procedure must be based on founded and verifiable elements.
• The serious cause: When we talk about a serious cause, it refers to a grave reason that may harm the functioning of the company.

What are the different types of dismissal?

A dismissal can take different forms, depending on the reasons that can be put forward. Generally, there are two main categories: dismissal for personal reasons and dismissal for economic reasons.

Dismissal for personal reasons

When we talk about personal dismissal, it mainly refers to the employee’s ability or professional behavior. In any case, this first type of dismissal must follow harm caused by the employee.

In terms of dismissal for personal reasons, two groups can be distinguished:

• Disciplinary dismissal

The procedure applies in case of misconduct, hence the term “dismissal for personal reasons inherent to the employee.” To be pronounced, this type of dismissal must be driven by committed faults.

It can thus be a simple fault (repetitions of several professional faults), a serious fault (faults of great severity requiring the employee’s expulsion to avoid dysfunction), or a gross fault (combining both a desire to harm the company and serious faults).

• Dismissal for unfitness:

This type of procedure occurs when an employee is no longer able to continue their professional activities. This can be caused by several situations, such as a work accident or an occupational disease. Moreover, to claim it, dismissal for unfitness must follow an opinion from occupational health services.

Obviously, to implement the procedures, the employee must be recognized as unfit in consideration of their position. Objectively, the employer must try to adapt or modify workstations to retain the employee before starting procedures.

As you understand, only after a search for reassignment can the employer proceed with the dismissal.

Dismissal for economic reasons

Dismissal for economic reasons is when the procedure is driven by reasons related to the company and not the employees. As its name indicates, the dismissal is thus motivated by economic troubles that may lead to the elimination of certain budget lines or the transformation of certain positions.

The valid reasons in the eyes of the law are as follows: technological changes, maintaining the company’s competitiveness, economic difficulties, cessation of company activities, a drop in turnover…

What are the employer’s obligations regarding dismissal?

Before proceeding with the dismissal of an employee, the employer must be informed of the various obligations incumbent upon them. First of all, as the initiator of the project, they are primarily responsible for all steps related to the dismissal. In this sense, all administrative formalities must be undertaken by them.

At the same time, they are also required to comply with dismissal procedures. Moreover, before initiating a dismissal (particularly for economic reasons), the employer must consult with the social and economic committee or CSE.

When the dismissal is justified, a business owner must follow specific steps, starting with summoning the employee for a preliminary interview, including sending a dismissal letter and various administrative notifications.

How can a dismissal be contested by the employee?

Beware of misconceptions, an employee is fully entitled to contest their dismissal in several situations. In fact, this is particularly advised if the employee notices breaches or violations of their employee rights.

Contesting a dismissal for lack of a real and serious cause

As mentioned earlier, an employer can only dismiss an employee based on a real and serious cause. Just as it is possible to contest a change in working hours, a dismissal can also be challenged. To do so, the employee must prove that the facts leading to the procedure are not sufficiently serious or are discriminatory.

Contesting a dismissal due to procedural irregularity

Besides the absence of a real and serious cause, the employee can also oppose the dismissal if the dismissal procedure is flawed. As a reminder, a dismissal must be subject to:

• A summons to a preliminary interview, in accordance with articles L. 1232-2 to L. 1232-5 of the Labor Code.
• A dismissal notification to the employee, by registered letter with acknowledgment of receipt, in accordance with article L. 1232-6 of the Labor Code.

Contesting a dismissal for violation of law or fundamental freedom

A dismissal is considered illegal and unlawful when it does not follow the regulations in force or violates the law or the employee’s fundamental freedom. In this sense, dismissal cannot occur in the following contexts:

• The employee faces discrimination or moral/sexual harassment
• The employee is on maternity leave or is pregnant
• The employee has suffered a work accident or occupational disease
• The employee is dismissed following the exercise of their fundamental rights

In what situations can a dismissal be considered unfair?

We often hear about unfair dismissal, but in many cases, it is difficult to formulate a precise definition of such a situation. Know then that a dismissal is perceived as unfair when it is not based on a real and serious cause. Similarly, failure to comply with the various dismissal procedures (summoning the employee for an interview, conducting the interview, notifying the dismissal) can also result in an unfair dismissal.

In other words, one could venture to say that a dismissal is unfair when both the substance and the form are not respected.

How must the employer inform the employee of their dismissal?

Besides the substantive conditions, a dismissal must also follow a precise formal procedure. This procedure represents the main means of evaluating the validity of the process in the eyes of the judges.

Summoning the employee to the preliminary dismissal interview

The first step the employer must take to inform the employee is to summon them to an interview. They must send a letter to their employee specifying the purpose, date, time, and place where the interview will take place.

Holding the preliminary interview

The preliminary interview cannot take place before 15 days have passed since the employee was summoned by letter. On the appointed day, the employer must obligatorily communicate their decision to the employee and state the reasons for the dismissal. At the same time, the employee may also provide explanations regarding certain situations and has the right to be heard.

Sending the dismissal letter

After the preliminary interview, the employer must send a dismissal letter to the employee within a minimum of 2 days after the interview. Despite this minimum period, a dismissal letter sent one month after the interview is inadmissible.

This letter thus notifies the employee of the continuation of the dismissal procedures. Likewise, the reasons motivating the dismissal must be clearly discernible in it.

The reason for dismissal

After notifying the employee of their dismissal, the employer may provide more details on the reasons for the termination within 15 days. That said, this step is not mandatory; it only occurs upon the employee’s request or if the employer wishes to do so.

The notice period

The notice period may vary depending on the nature of the dismissal. Thus, for a simple fault, the contract is not immediately terminated after the dismissal notification. Indeed, the employee must still serve a notice period unless the employer decides otherwise.

On the other hand, a serious or gross misconduct necessarily leads to the immediate termination of the contract after the dismissal notification. The employee is therefore not required to serve a notice period.

What is the duration of the dismissal notice period?

The notice period has a variable duration depending on the employee’s seniority and the company’s collective agreement or its collective bargaining agreement. Thus, for an employee with less than 6 months of seniority, reference should be made to the company’s or profession’s practices.

That said, the notice period generally ranges from one month (for seniority of less than 6 months) to 2 months (for employees who have been with the company for more than 2 years).

Is the dismissed employee entitled to severance pay?

Severance pay is not always received by all employees. Indeed, the right to such compensation is handled on a case-by-case basis. Thus, there are several criteria to consider. These mainly involve cumulative conditions to be met, including: an indefinite-term contract or CDI, dismissal for personal reasons (simple fault, unfitness) or dismissal for economic reasons.

As you can understand, an employee dismissed for serious or gross misconduct will not be entitled to severance pay.

Furthermore, to qualify for this type of compensation, the employee must also have a minimum seniority of 8 months within the company.

How is severance pay calculated?

To calculate the amount of severance pay, one must refer to articles R. 1234-1 of the Labor Code. According to the legislation, a minimum amount is recommended, but this can be increased if there is a more favorable collective agreement or employment contract.

Generally, severance pay is calculated based on the employee’s salary and their length of service. Reference must be made to their gross remuneration as well as their reference salary. In all cases, the calculation method most favorable to the employee will always be used. The calculation methods are thus variable. For example, two possibilities can be considered:

• A monthly average of the last twelve months
• 1/3 of the last three months (plus 1/12 of the amount of the bonus for each month of the last 3 months in case of an annual bonus).

In all cases, it should be noted that the severance pay can in no way be less than:

• A quarter of a month’s salary for each year of seniority (first 10 years)
• A third of a month’s salary for each year of seniority (from the 11^th year of seniority)

What is the difference between dismissal for personal reasons and economic dismissal?

A dismissal can be motivated by several reasons, including two main ones: personal reasons and economic reasons.

In the case of dismissal for personal reasons, the procedure follows a problem originating from the employee, such as unfitness, misconduct, or professional inadequacy. Conversely, an economic dismissal follows economic difficulties of the company. This may involve reorganization in the face of a deadlock or the need to replace the employee’s position due to technological advancement.

In other words, dismissal for personal reasons is inherent to the employee themselves, whereas economic dismissal is often caused by factors related to the company itself.

What are the employer’s obligations regarding the redeployment of employees dismissed for economic reasons?

When a company carries out an economic dismissal, it must redeploy one or more of its employees. Indeed, according to the law, dismissal must be avoided as long as it is possible.

What is the purpose of a reassignment?

The employer must seek suitable solutions to avoid initiating the dismissal procedure. This may involve adapting the employee to another position (requiring additional training) or reassigning the employee so that they can continue their activities within another workspace.

It can thus be ventured to say that reassignment aims to maintain the employee’s job so that dismissal only occurs in exceptional circumstances or in the absence of alternatives.

Reassignment obligations and possible proposals

In the context of dismissal for economic reasons, the employer faces a dual obligation. Indeed, they must search for an appropriate solution and then offer alternatives to the employee.

• The obligation to search

If the company is facing an economic deadlock, the employer must consider the profiles of their employees in order to assign them to other positions. This is thus a serious and effective search for solutions that should prevent employees from losing their jobs.

• A geographical reassignment

Besides changes in job assignments, the employer may also consider a geographical reassignment. In this case, the employee may be transferred to company establishments located in another region.

Otherwise, for a company belonging to a group, the employer is obliged to seek a position for the employee across all establishments of the group.

• Characteristic criteria of the position that may be subject to reassignment

When the employer proposes to transfer an employee to another position, they must ensure the availability of the job. Likewise, the proposed position should allow for remuneration equivalent to the employee’s previous salary.

If no alternative is found, the employer may opt for reassignment to a lower category job. However, the employee has the right to protest or give their consent to the proposal.