French employment legislation counts itself amongst the most complex and protective labor codes in Europe. It does not recognize the concept of “employment at will” and encourages employers to consider dismissals as a last resort only. In most cases, it is advisable to implement corrective measures first, such as performance improvement plans; or ultimately negotiate a mutual separation agreement with the employee (known locally as a “rupture conventionelle”).
Although employers may initiate dismissal proceedings, final approval from French authorities may be required. A “cause réelle et sérieuse” (real and serious cause), as defined by French law, must be proven prior to dismissing an employee and strict dismissal procedures must be followed. Employees may not legally contract out of these rules.
The French labor code recognizes three justifiable grounds for dismissal:
- Voluntary Personal Grounds
Voluntary personal grounds are defined as “inherent to the person” and a product of voluntary intent or demonstratable guilt. These grounds may not be discriminatory and must be thoroughly documented and evidence based. They are commonly related to serious employee misconduct for which the employee is directly responsible.
French law recognizes 3 categories of misconduct:
Simple Fault – A non-grave but serious fault, such as repeated carelessness or unjustified absences, may constitute grounds for dismissal. Employees are entitled to severance pay, compensation for advance notice, and paid leave.
Grave Fault – Grave fault occurs when the fault makes it impossible for the employee to continue in the organization, such as harassment, violence, and insults in the workplace. The fault must be attributed directly to the employee. In such cases, the employee immediately departs and receives no compensation for advance notice and dismissal.
Gross Fault – Gross fault occurs when an employee intends to harm the employer. An employee’s intent must be shown to justify dismissal. Gross fault involves immediate dismissal without right to compensation for advance notice or dismissal. However, paid leave remains due.
- Involuntary Personal Grounds
Involuntary personal grounds are defined as “inherent to the person” however are not a product of voluntary intent or guilt. Employers must demonstrate in good faith, that attempts to correct such faults were made prior to dismissal by providing employees with reasonable time frames, guidance and tools to improve. Thoroughly documented performance improvement plans (PIP) or formal warning letters are commonly used as a preliminary step prior to considering dismissal.
Common involuntary personal grounds for dismissal include:
Professional insufficiency – Here, an employee is incapable of performing duties required for the role. Because there is no fault – an employer must support the dismissal with documented evidence and advance notice.
Insufficient results – Here, an employee is unable to produce results which are proven to be otherwise achievable and aligned with realistic business objectives.
Disagreement – An employee has irreconcilable disagreements with others where conflict resolution cannot be successfully implemented.
Note that grounds pertaining to the personal life of an employee is not justification for dismissal unless the behavior is proven to be detrimental to the business.
- Economic Grounds
The French labor code defines justifiable economic grounds for dismissal as not inherent to the person and outside the scope of the employee’s reasonable control. The grounds must be a direct result of:
- A suppression or a transformation of employment consecutive to demonstratable economic difficulties
- Technologies transformations
- Reorganization or formal cessation of business activities due to demonstratable economic difficulties.
As when based on personal grounds, dismissal for economic grounds must be thoroughly documented and evidence based. Employers may be required to provide evidence of economic difficulties, justify how the dismissal is appropriate in the face of the highlighted economic hardships and show that non-discriminatory social selection was applied when dismissing employees.
Procedures for Dismissal
Once initiated, it is critical that the correct dismissal procedures be followed:
- Summon employee to an interview about the proposed dismissal
The summons must be delivered personally or via recorded mail. In the context of a disciplinary dismissal, summons must be sent at least 2 months from the employers’ knowledge of the facts. The summons must contain the reason for the interview, date, hour, place, and option for the employee to have a representative or witness present.
The interview must be conducted at least 5 working days from the receipt of summons. The employee is not obliged to appear at the preliminary interview, which must be held at the place of work or head office.
- Notification of the dismissal
Notice of the dismissal must be made by registered letter at least 2 working days after the date of the interview. The letter must be signed by the employer and detail all reasons for the dismissal, and the duties and rights of each party. The employee can ask the employer for explanations within 15 days in a letter sent registered or recorded delivery.
GoGlobal Can Help
The international PEO services model enables companies to hire compliantly, quickly, and affordably almost anywhere, while avoiding the pitfalls and risks of hiring contractors. As an international PEO services company, GoGlobal is well placed to help your company adapt to France’s termination regime. Please contact us to discuss how GoGlobal can help you.