This is already established case law but sufficiently unusual as an issue that worth the reminder to employers with operations in France.
The French Labour Code expressly provides for an employee to be accompanied by a colleague or in some cases by an appointed external advisor (mentioned on a list held by the Labour Inspector and also available in town halls), but there is no similar right for employers.
Nonetheless, French case law recognises that the employer officer conducting the meeting may be assisted by one or more other employees, provided that this other employee does not actually conduct the meeting (his role should be limited to providing information to the parties) and that his presence does not cause any detriment to the employee under threat of dismissal by limiting or hindering his ability to present his case to the best effect.
Decided case law suggests that the extra employee on the employer’s side of the table should be limited to someone who can provide useful input or information during the meeting, such as the employee’s supervisor, and (more controversially) that the employer should preserve an “equality of arms” between the parties at the meeting.
By way of example, one case held that when the employer was accompanied by a staff member who had a contentious relationship with the employee, the dismissal procedure was irregular since the employee had therefore not felt able to express himself freely at the meeting. Another case concerned an employee who had been violent against a department head. The employer chose to turn up with four other employees, among them the department head himself and two other employees who said they had witnessed the incident. The court considered that the employer’s presence in such numbers had effectively transformed the meeting into an interrogation and was therefore irregular. The same decision was reached in a case where the employer had been assisted by just two employees (even though both had had useful comment to make on the quality of the employee’s work). In another case, the procedure was deemed irregular because the employer had been assisted by the Receptionist who had no relevance to the facts alleged against the employee. Though improper motive is not required as a condition of finding an irregularity, the court in that case took the view that the sole aim of the employer in asking her to attend was to make public within the company the dispute with the employee.
In a more recent decision, the French Supreme court (Cass. Soc. 20 January 2016) confirmed this line of cases — here the employer had been assisted during the pre-dismissal meeting by both a Floor Manager and the HR Manager. The employee claimed that she had felt as if she was on trial in front of a jury and so intimidated that she had not been able to defend herself properly. The Court of Appeal had rejected her claim of damages for irregular procedure, but the Supreme Court reversed this.
Lessons for employers
So however tempting it is for the employer to seek safety in numbers and be assisted by several employees at the same time (e.g. the line manager of the employee plus a HR person), this should be avoided, even if the employee consents to the presence of several persons at the pre-dismissal meeting. It can always be argued that this consent was given under pressure anyway and so it should not bind the employee. This is even the case for more senior employees – you might think that the court would be unlikely to swallow claims from senior managers with plentiful experience of public presentations, etc., that they felt inhibited by an extra couple of people in the room but there appears to be little heed paid to this in practice. And of course if those extra people behave aggressively in the meeting, or are there for no reason, or are clearly pre-disposed against the employee under threat, that may be different too. This is not purely a numbers question in theory but it does seem to be so in practice. So it is clear that French employers seeking to minimise the scope for complaint should limit the number of people in the room at any one time so far as possible and be able to explain clearly in advance who is expected to attend and what their role is.
What if you get this wrong? It does not make the dismissal unfair but irregular. As a reminder, an irregularity of procedure can lead to compensation of up to one month’s salary for companies with at least 11 employees where the employee who is the subject of the meeting has at least two years’ service. However, the employee in that case only gets that payment if his/her dismissal is fair. If it is not, the damages for unfair dismissal (a minimum of six months’ salary in that case) would be deemed to include it. In companies employing less than 11 employees or where the employee has less than two years’ service, damages for irregular procedure are freely assessed by the court and the employee can add them on top of his claim for damages for unfair dismissal.