According to French case law, the withdrawal of an employee’s driving licence can, in certain circumstances, constitute a fair reason for dismissal. But what happens if that licence is subsequently reinstated – is the dismissal still fair? No, according to a recent decision of the Employment Chamber of the French High Court.

In this case the employment contract of a sales engineer specifically stated that he would be required to travel on business and he was given a company car for this purpose. Following the loss of all the “points” on his licence, the employee’s driving licence was revoked for a period of six months. The employer, noting that the employee could no longer perform the tasks for which he had been hired, proceeded to dismiss him.

Several months after the dismissal, the administrative court reversed the decision to remove the “points” which had led to the employee’s driving licence being revoked. The administrative court’s ruling had retroactive effect which meant that the original decision to revoke the driving licence was deemed never to have taken place.

In light of these events the employee in question contested his dismissal. His claim was initially rejected, but it was then referred to the High Court as a “Priority Question on the issue of Constitutionality”. The High Court declined to refer the matter to the French Constitutional Court and held that it was obliged to apply the principle of retroactive effect in these circumstances. This meant that the employee’s driving licence was treated as never having been revoked which rendered the employer’s decision to dismiss automatically unfair. The principle of retroactive effect clashes in this case with the principle that the reason for a dismissal should be considered on the day of dismissal.

This ruling imposed by the High Court creates great legal uncertainty for employers, as it means that a decision to dismiss an employee whose driving licence has been revoked may be fair at the time the dismissal is announced, but could turn out to be unfair if the employee’s driving licence is subsequently reinstated. It seems that employers must bear the risks of any illegality resulting from the reversal of an administrative decision.

Employers forced to meet the financial consequences of a dismissal being reclassified as “unfair” in such circumstances may wish to consider seeking a remedy from the State. Case law has established that an employer which has to bear the damaging consequences of a protected employee’s unfair dismissal case can seek liability of the State when the authorisation to dismiss given by the administration is subsequently reversed.