Under a May 18, 2010, amendment to the French Labor Code, prior to dismissing an employee for economic reasons (as opposed to performance or other personal grounds), an employer in France must review all possible job openings in all of the companies and offices of its group with an eye to determining whether the employee can be reassigned to one of those openings, even if it is abroad (Art. L. 1233-4 of the French Labor Code). In an instruction dated March 15, 2011 (Circ. DGT n° 03), the French Labor Administration provided useful clarification of the reassignment obligation. It is clear that companies belonging to a group established in more than one country have to look for all reassignment opportunities existing within all working sites of the group “whose activities, organization, and location allowed this reassignment.” In practice, many companies did so knowing that very few opportunities outside France would in fact match the employee’s skills or professional preferences; even though most employees would not want to move and would reject the reassignment opportunity, the inquiry was still legally mandated. As the French Supreme Court (Cour de cassation) made clear, companies could not limit the inquiry by asking the affected employees beforehand about their relocation preferences or restrictions. The concern for many French employers was that this legally mandated inquiry clashed with the impression, widely held by employees and trade unions, that offers for reassignment in Asia, Africa, South America, or Eastern Europe would be inadequate because of the lower salaries and working standards prevailing in those regions. To avoid these difficulties, many employers did not offer reassignment opportunities in those areas—and consequently were successfully sued by terminated employees for failure to comply with the reassignment obligation.
The May 18, 2010, law sought to avoid these difficulties by requiring that any reassignment should be for “equivalent remuneration” and allowing the employer to inquire into the affected employee’s preferences or restrictions. In its March 15, 2011, instruction, the French Labor Administration provided a template questionnaire to be used to survey employees on their relocation preferences. As part of the survey, the employee must be asked whether he or she would be at all interested in reassignment outside France and, if so, what his or her preferences and restrictions would be with regard to location and remuneration; general restrictions regarding employment-contract clauses and working conditions may also be expressed. After the survey is returned by the employee, the employer is to take into account the employee’s express wishes in determining the scope of the reassignment opportunities and must tailor any reassignment offers to those wishes. It must be noted that an employee’s failure to answer within six working days is treated as a rejection of reassignment opportunities outside French territory.
Despite this helpful clarification, the reassignment survey continues to raise many issues and questions. First, an employee may very well express no restrictions whatsoever, in which case the employer will still have to research available positions in every country where the group is established, even when the level of remuneration associated with the job position identified is clearly unsuitable. Also, it may be very difficult or even impossible for the subsidiary of a large group to identify all the working sites of the other companies of the group in order to list them in the survey, let alone find out whether these companies have vacant positions. Moreover, processing and taking into account all the wishes expressed by employees in order to personalize reassignment offers will, in collective redundancies, make the already extremely complex and burdensome dismissal procedure even more so.