French case law has already established that the withdrawal of an employee’s driving licence can in certain circumstances constitute a justified reason for dismissal. The Employment Chamber of the French High Court has now had to address the following question: what should happen to a dismissal for such a disqualification if that traffic penalty is later overturned on appeal?
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 was disqualified for 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 appeal court reversed the disqualification.
In legal terms that decision has retroactive effect: the reversed decision is deemed never to have existed. So (in retrospect only) it turned out that the employee had been dismissed without reason.
The employee therefore contested his dismissal. His claim having been dismissed by the Employment Tribunal, he headed off to the Orléans Court of Appeal and then the High Court.
Here it was held that the retroactive nature of the successful appeal against disqualification (i.e. in effect meaning that it had never happened) would lead any dismissal on this basis to be found automatically unfair.
This retroactive effect clashes with the usual and common-sense principle that the validity of the reason relied on for a dismissal is considered on the day of dismissal and that its fairness will not be tainted by later events of which the dismissing employer was not and could not have been aware at the time.
This ruling will obviously be a source of great legal uncertainty for employers. They can justify the dismissal of an employee whose driving licence is revoked at the time the dismissal is announced but they cannot, at the time of the dismissal, predict or assume the eventual reversal of that disqualification.
The result of this ruling is that French employers now appear to bear the risks of any illegality or unfairness resulting from the reversal of an administrative decision. What options do they have? The employee could be suspended without pay (if he agreed) pending dismissal of any appeal, or could be dismissed conditionally, i.e. on the express basis that if the disqualification is overturned, he can have his job back. But in either case, the employers could then be liable for the arrears of pay – given how long some traffic cases take to reach the appeal hearing stage in France, that could be very costly. In addition, the employer would not able to plan or recruit around that dismissal since it would not know whether the employee would be coming back.
An employer forced to meet the financial consequences of a dismissal becoming ‘unfair’ following the reversal of the decision to withdraw a driving licence could consider seeking compensation from the State. Case law has established that an employer which suffers losses through a protected employee’s unfair dismissal can seek compensation when the authorisation to dismiss given by the Labour Administration is subsequently reversed, though the process is lengthy and costly.
Overall, this is a very unattractive decision for employers. It must be hoped that we soon return to the principle that they can only reasonably be expected to take into account the facts as known at the time of dismissal.