Termination

Notice

Are employers required to give notice of termination?

The parties must observe and cannot waive the required notice periods before an indefinite-term contract is terminated. There are exceptions to this rule (eg, dismissals for gross misconduct). The notice period depends on the employee's length of service.

Employees who are dismissed or made redundant are entitled to pay in lieu of notice if they are not required to observe their notice period.

Redundancies

What are the rules that govern redundancy procedures?

A redundancy is a dismissal for ‘economic grounds’, which the Labour Code defines as:

  • economic difficulties;
  • technological changes;
  • the need to safeguard competitiveness; or
  • the total and definitive shut down of a French legal entity.

Since the Macron reforms, this economic rationale has been assessed at the company level in France or under the scope of other companies of threat-group level, within the group companies operating in the same business sector, established on national territory in France. The law has not changed the fact that the group’s situation must be taken into account. It also maintains the reference to the “business sector” of such groups and now indicates how the business sector is characterised.

If an employee challenges their redundancy as unfair dismissal before the courts, the employer must provide evidence of the grounds for redundancy that appear in the dismissal letter.

For collective redundancies, the employer must send a detailed note to the employee representatives for the purpose of the information and consultation process which must:

  • explain the grounds for the redundancy; and
  • provide evidence of an economic motivation.

The internal redeployment duty has also been modified by the Macron reforms, which have put an end to the duty to search for internal roles within the company’s group abroad. This fundamental requirement is now limited to France alone, albeit still within the group’s perimeter.

The reforms have also lightened the process for proposing redeployment opportunities. The employer may now start by delivering a list of available roles within the group in France only. The employee has 15 days to show interest.

Are there particular rules for collective redundancies/mass layoffs?

Any company with at least 50 employees that is dismissing, for economic reasons, at least 10 employees over 30 days must establish a job preservation plan.

Since 2013, the procedure concerning collective redundancies has been profoundly modified with:

  • a choice between a negotiated procedure with the personnel representative’s bodies (leading to the signature of a collective agreement) or a unilateral process;
  • a new timeline of procedure; and
  • an increased role of the Labour Administration.

The employer must commence a two-stage information and consultation process of the works council, either concurrently or consecutively. The works council has a limited time to consider the project (depending on the number of redundancies contemplated) and give its opinion. The employer must take the works council's opinion into consideration, although it is not binding.

The job preservation plan must contain social support measures in order to minimise the number of redundancies. The local Labour Administration must approve the plan.

When a negotiation takes place, the works council and trade union representatives can be assisted by a chartered accountant on all financial and economic issues in order to properly analyse the economic rationale behind the contemplated collective redundancies. A dedicated expert can also be appointed to analyse the potential consequences of the project on working conditions, health and safety.

Depending on the number of redundancies considered, the works council has between one and four months to give its opinion (unless provided otherwise in the potential collective agreement signed with trade union representatives).

The dismissals can take place only after the decision of the administration on the plan, as well as the failure of the redeployment procedure.

Protections

What protections do employees have on dismissal?

Certain employees have varying levels of protection against dismissal, including:

  • pregnant women;
  • employees on sick leave as a result of a work-related illness or accident; and
  • employee representatives.

Pregnant women and employees on sick leave as a result of a work-related illness or accident cannot be dismissed during the protection period set out by the Labour Code.

Employee representatives can be dismissed only if the labour inspectorate authorises it and after having followed a specific process – regardless of the ground for termination.

Click here to view full article.