Alexandra Tuil Helene de Nazelle January 18 2023 Risk of nullity of dismissal: French Supreme Court rules in favour of employee Hogan Lovells | Employment & Immigration - France Alexandra Tuil, Helene de Nazelle Employment & Immigration IntroductionFactsCourt of AppealSupreme CourtComment IntroductionIf a dismissal is ruled null and void, the scale provided for in article L 1235-3 of the French Labour Code relating to unfair dismissals does not apply.An employer who relies on several dismissal grounds in their dismissal letter may, however, ask the judge to examine all the dismissal grounds invoked in order to limit the amount of payable damages in accordance with the provisions of article L 1235-2-1 of the French Labour Code. A recent decision of the French Supreme Court held that such a request must be made expressly to the judges at the hearing on merits.(1)FactsIn this case, an employee, working as a dental assistant, lodged a claim of constructive dismissal. One month later, her employer dismissed her for personal reasons. The dismissal letter referred to several breaches and to the employee's recent action lodged in court.Court of AppealThe dismissal was ruled null and void as it was held to infringe the employee's fundamental rights. The Court of Appeal awarded the employee 16 months' salary as damages. The limit of 10.5 months' worth of salary payable to employees with 11 years of service did not apply due to the dismissal being null and void. The employer did not contest the amount requested by the employee.The employer appealed to the French Supreme Court and criticised the decision of the Court of Appeal on the basis of article L 1235-2-1 for not having considered the other dismissal grounds referred to in the dismissal letter in the process of determining the amount of damages awarded to the employee.Supreme CourtThe decision of the French Supreme Court is clear; article L 1235-2-1 offers the employer a defence on the merits that must be submitted to the prosecution. Consequently, the judges will only examine this defence if the employer asks them to do so – which was not the case in this instance.When such a request is made by the employer, the judges must consider the other dismissal grounds invoked in the dismissal letter to assess the damages to be awarded to the employee. This must amount to more than six months' salary.CommentWhere there is a risk that a dismissal will be ruled null and void and where the dismissal letter mentions several dismissal grounds, the employer must ask the court to take into account the other dismissal grounds invoked in order to limit the amount of damages that may be awarded.The Supreme Court's decision also serves as a reminder that where a dismissal is rendered null and void, the employer can only be ordered to reimburse the unemployment benefits to Pôle Emploi (a French unemployment agency) in the cases mentioned in article L 1235-4 of the French Labour Code.For further information on this topic please contact Alexandra Tuil 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 www.hoganlovells.com.Endnotes (1) No. 21-15.533, 19 October 2022.