It is well known that an employer cannot penalise an employee multiple times on the same grounds.

However, the practical application of this principle causes difficulties, which was illustrated by a 2 February 2022 decision rendered by the Court of Cassation.(1)

In this case, the employer complained about an employee in the report that followed his appraisal interview for "his harsh attitude and lack of willingness to change, which led to a complaint from employees who were suffering" and "serious shortcomings related to electrical safety and failure to comply with regulatory standards". The employee was invited "in an imperative and comminatory manner and without delay" to "change completely and totally". One month later, the employee was dismissed for serious misconduct, based on the attitude and shortcomings that were denounced in the report.

The employee challenged his dismissal in court and won his appeal. The Court of Appeal ruled that the company had exhausted its disciplinary powers in the context of the annual appraisal interview report, which it qualified as a warning on the grounds that it contained specific grievances and penalised behaviour considered to be wrongful.

This solution was approved by the Court of Cassation, which rejected the employer's arguments that the annual appraisal interview report could not be considered as a disciplinary measure when the intention to punish the employee was not expressed.

Several judgments have shown that regardless of how a written complaint is formed or qualified, it constitutes a warning (ie, disciplinary punishment) when made to an employee, as it is likely to "affect the employee's career".(2)

At the same time, the Court of Cassation was able to specify that a report of an interview that mentions observed failures and specifies the intention to impose a penalty does not characterise a warning.(3)

The combination of these decisions suggests that employers should be cautious when drafting annual appraisal interview reports, which should be limited to objective observations without drawing conclusions and, in particular, can expressly request the employee to change their attitude. The statute of limitations must be respected if a penalty is to be pronounced.

Each situation must be evaluated on an independent basis. Nevertheless, completing an annual interview report should not be neglected, as it is likely to be an essential document during employment tribunal litigation.

For further information on this topic please contact Marion Guertault or Hélène De Nazelle at Hogan Lovells by telephone (+33 1 53 67 47 47) or email ([email protected]​ or [email protected]). The Hogan Lovells website can be accessed at


(1) No. 20-13.833.

(2) Court of Cassation Labour Division ruling of 26 May 2010 (08-42.893) and 3 February 2017 (15-11.433).

(3) Court of Cassation Labour Division ruling of 27 May 2021 (19-15.507).