Clarification on Procedure Regarding Reasons Stated on Dismissal Letters

New Legislation Enacted

The labor reform plan of September 2017 sets forth a new procedure to clarify the grounds of dismissal letters after they have been sent to the employee. This procedure applies to either type of dismissals (whether on economic or personal grounds) and can be initiated by the employee or the employer, and provides for a 15-day period as of the date of notification of the letter for the employee to require a clarification on the reasons for the termination, or for the employer to provide it. If the employer wants to answer to the dismissed employee’s request, it must be done within 15 days after the request. All exchanges must be done by way of registered letters with acknowledgement of receipt, or delivered personally against receipt.

Company’s Rule Providing for Obligation of Neutrality Held Valid

Precedential Decision by Judiciary or Regulatory Agency

In a case involving the dismissal of an employee who refused to remove her headscarf while working, the Supreme Court recently held that the employer can enshrine, as a company or internal rule, an obligation of neutrality which prohibits employees to wear any visible political, philosophical or religious symbol in the workplace, as long as this general prohibition is only enforced on client-facing employees. If the employee refuses to conform to this rule when performing her work with the company’s clients, the employer must investigate whether it is possible to offer her a position with no client-facing duties. The employer can take into account the company’s business constraints and no additional burden must be created on the company as a result. If no such position is available, the employee may be lawfully dismissed.

Legality of Differences of Treatment

Precedential Decision by Judiciary or Regulatory Agency

Some collective bargaining agreements negotiated at a national industry level (such as cleaning, catering or private security companies) provide an automatic transfer of existing employment contracts in case of loss of market (out of the scope of statutory TUPE rules). In such situations, the company that wins the market must hire employees of the company that lost the market, offering to keep the salary level intact for these transferred employees. On November 30, 2017, the French Supreme Court ruled that it is justified and not an unfair inequality to have different salaries for transferred employees and former employees of the company.

The Right to Make a Mistake Before the French Administration

Proposed Bill or Initiative

A Bill introduced before the National Assembly on November 27, 2017, seeks to acknowledge the right to make a mistake that resulted in a person’s or entity’s first involuntary breach of a rule. As proposed, if the mistake is rectified, on the person’s or entity’s own initiative or after being invited to do so, no administrative financial fine would be imposed, except if bad faith is proven. This would apply to employers who, in good faith, breach the French labor code (regarding wage payment, etc.), the CBA, or health and safety rules. The Bill also institutes a mediation procedure. This new system aims to prevent litigations that can be long and costly for both employers and the administration.