French law requires an employer to look for redeployment opportunities within the corporate group before going ahead with redundancies.
As mentioned in a previous newsletter, a law on redeployment provides that the obligation to offer jobs available abroad only extends to positions of an equivalent level of remuneration and that an employer can, before offering a redeployment position located abroad, submit a preliminary questionnaire to the employee.
This law is intended to allow the employer to limit its search to the scope defined by the answers provided by the employee. As a result, situations in which employers are found to be in breach of their redeployment obligations should be reduced.
However, several questions remained unanswered as to the practical application of the new legislation. A circular from the French Employment Administration on 15 March 2011 has answered some of these issues.
How will judges assess the notion of "equivalent remuneration"?
The circular mentions that the remuneration to be taken into account is the global remuneration as defined by the French labour code; in other words, ordinary base or minimum salary and all other benefits paid, directly or indirectly, in cash or kind.
When must the questionnaire be submitted to the employees?
The entire process - the sending of the questionnaire, the employee's answer and the subsequent offers, must be carried out before the redundancy is notified to the employee.
As a result, the questionnaire should be sent at the time the employee is called to the redundancy preliminary meeting or, in case of collective redundancy, after the first employee representatives' meeting, and not before the application of the selection criteria.
The circular indicates that registered mail with return receipt or hand delivery with acknowledgment of receipt is valid proof that the employer carried out its duties in terms of redeployment abroad.
What should the questionnaire include?
The circular indicates that the employer has to provide a detailed list of countries where the company or group is established and where redeployment is possible.
The questionnaire also deals with the content of the answers of an employee who is interested in being redeployed abroad, with particular focus on countries where he/she would accept redeployment and restrictions regarding remuneration.
The employee has a right to express restrictions relating to the characteristics of positions to be offered, such as main clauses of the employment contract (nature of the position, working time, contractual benefits) as well as working conditions (such as working hours, paid vacation, health and safety rules).
In order to guide the employee's choice, the employer can include in the questionnaire some general information about local working conditions.
Employers are invited to use the template questionnaire attached to the circular.