Terminating employment is always a big decision. So it’s important to be familiar with the ins and outs of redundancy, to avoid making any mistakes.
Determining the grounds for dismissal
First of all, you need to identify the reason for which you are going to dismiss your employee.
You can only make an employee redundant for a specific reason, not just because you feel like it.
This reason must be clearly stated in the letter of dismissal that you send to your employee.
These grounds have gradually been developed and clarified by the law and case law, and are mainly as follows:
- for simple, serious or gross misconduct
- professional incompetence
- Insufficient results
- Misconduct;
- For non-occupational or occupational unfitness;
- Illegal status of a foreign employee;
- For objective disruption to the smooth running of the company caused by an event in the employee’s personal life;
- For disorganisation of the company resulting from prolonged or repeated absences of the employee;
- For economic reasons;
To determine the grounds for dismissal, you will need to draw up a list of the factors that have led you to dismiss your employee.
However, it may happen that, despite this list of factors, you still do not know for what reason you should dismiss your employee.
This may be the case, for example, if you do not know whether the reasons for which you are criticising your employee amount to professional incompetence or misconduct on their part.
Your lawyer can help you make the right decision.
Knowing how to react
When your employee commits a fault, you may no longer have the necessary distance to act objectively in the face of such behaviour.
This may be the case, for example, when your employee, whom you know and appreciate well, repeats behaviour that is prohibited within the company. Even though you have never taken any disciplinary action against the employee before, this time you want to get rid of him straight away, because “this is the last straw”.
Unfortunately, the absence of any previous disciplinary action will prevent you from dismissing your employee for gross misconduct, since this “tolerance” will be considered as an admission that the misconduct was not serious.
Similarly, you may find yourself in a situation where your employee behaves in a way that you consider intolerable, inadmissible or unacceptable, but which case law does not consider to be misconduct or serious misconduct.
Your lawyer can guide you and help you to react to your employee’s behaviour in order to avoid any error of judgement dictated by your subjectivity, which is, moreover, perfectly understandable but legally erroneous.
Gathering the facts
In any situation in which you are required to dismiss your employee, you will need to gather the evidence you need to justify your decision.
According to long-standing case law, it is up to the employer to prove the grounds for dismissal.
As evidence is freely available before the Labour Court, this evidence can be of any kind, such as witness statements, accounting figures, expired work permits, exchanges of emails or text messages, etc.
The only limit to obtaining such evidence is that it must not have been obtained unfairly, in which case it will be deemed unlawful and therefore inadmissible. This is the case, for example, of a recording made without the employee’s knowledge, images from a video-surveillance camera whose purpose of monitoring the employee has not been declared to the CNIL and of which the employee has not been informed, spying on the employee’s private exchanges, etc.
Avoiding procedural flaws
The dismissal of an unprotected employee must follow a specific procedure, set out in the Labour Code and clarified by case law.
Any redundancy procedure must therefore follow the following stages:
- Invitation to a meeting prior to possible dismissal,which must be sent by recorded delivery or by hand-delivered letter against receipt. It must also state the purpose of the meeting (possible dismissal), the date, time and place of the meeting, and the arrangements for the employee’s attendance.
- Interview prior to dismissal,which may not take place less than 5 working days after the first presentation of the letter of summons or its delivery by hand. During this meeting, the employer explains the reasons for the proposed dismissal to the employee and obtains the employee’s explanations. The employee’s absence from the preliminary interview does not prevent the procedure from continuing.
- Notification of the dismissal to the employee,which may not be sent less than 2 working days after the preliminary interview. It must also be sent by recorded delivery and contain precise reasons for the dismissal.
- Advance notice,which begins when the dismissal letter is received. Its duration varies according to the employee’s seniority and the applicable collective agreement. The employer may also exempt the employee from serving the notice period (although this must be paid).
- Submission of end-of-contract documents,i.e. the employment certificate, the Pôle emploi certificate and the final balance.
However, certain grounds for dismissal have their own specific procedural requirements:
- In the case of dismissal for serious misconduct, the facts cited may not have occurred more than two months before the employee was invited to a preliminary interview. In addition, notice of dismissal may not be given more than one month after the interview.
- In the event of unfitness, if the employee has not been reclassified or dismissed one month after the medical examination declaring him unfit, the employer must resume payment of his salary.
- If a foreign employee is in an irregular situation, the aforementioned rules relating to the redundancy procedure do not apply.
- In the event of redundancy for economic reasons, the procedure differs depending on the number of redundancies envisaged and the number of employees in the company (consultation of the CSE, transmission to the DREETS, proposal of the CSP, etc.).
A lawyer is there to support you and ensure that the procedural rules are complied with in all circumstances.
Don’t hesitate, give us a call!
