How to dismiss an employee in France.
Par Alain-Christian Monkam, Avocat
The dismissal of an employee is subjected to a formal procedure set out in the French Code of Labour. The procedure has to comply with various time limits (section L. 1232-2 and following).
1- The employer has to convoke the employee to a preliminary hearing. Such convocation must be received by the employee 5 business days before the date of the hearing.
The convocation should state :
• that the employer considers dismissing the employee
• the date, the place and the time of the hearing
• that the employee might be accompanied by an adviser (depending on whether the company has elected employees’ representative or not, such adviser should be either a member of the workforce or an official adviser provided on a administration list)
It should be noted that the convocation does not need to state the reasons of the possible dismissal.
2- The preliminary hearing has to be held with the employee. The employer should state the reasons why he considers dismissing the employee ; and the latter should give any explanations for his defence.
Three comments :
• the employer cannot be replaced by his lawyer at the interview. The head of the company has to attend the interview himself or send any in-house representative (eg, human resources manager) ;
• the employer does not need to disclose to the employee the proof of the grounds founding the future dismissal ;
• the employer must not notify the dismissal to the employee during the hearing. It is a serious breach of the procedure ;
3- No shorter than two business days and no longer than 1 month after the hearing, the employer has to notify his decision to the employee. If the employer decides to sack the employee, he has to send a dismissal letter to the employee (generally by registered letter).
A great care should be taken as to the drafting of the letter :
• the letter should clearly state the reasons of the dismissal ; the French Code of Labour does not set out a list of admissible reasons ; the French statutes only provide that the reason should be real and serious (to be noted : a fixed-term employee can be dismissed only for gross misconduct or impossibility to continue the fixed-term contract).
It should be emphasized that the employer would not be allowed to subsequently argue other reasons than those stated by the letter.
• the delivery of the letter to the employee starts the notice (or the immediate end of the contract where the employer holds a gross misconduct against the employee) ; the employer can exempt the employee from being at the company’s premises during the notice ;
• other various mentions must be set out in the letter, eg the employees’ rights to the “DIF” (statutory hours of professional training)
4- At the end of the notice, the employee has to be provided with various paperwork (ie certificate of work, document for the unemployment administration, final receipt and pay including the termination rights).
As the reader can see, the contract of an employee can be terminated within 10 days in France. The procedure is not so simple where the employer contemplates a redundancy or wishes to dismiss an employees’ representative.
To conclude, a dismissal in France is quite easy but is often the first step of a long war. Next step : the employee’s application to the employment tribunal for unfair dismissal (unless the parties have entered into a compromise agreement)…
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