Background

Previous Cour de Cassation case law defined serious misconduct as "an event generated by the employee which constitutes a breach of the obligations resulting from the employment contract or relationship, which is so serious that it prevents the employee being maintained within the company for the duration of their notice period." This case law was modified by a 2005 case before the Cour de Cassation, in which it was held that serious misconduct "is so serious that the employee cannot be maintained within the company for even a short portion of their notice period."

The instant case

In the instant case, an employee was suspended, and then terminated for serious misconduct. Despite dismissing the employee for serious misconduct, the employer indicated that the employee would be entitled to payment in lieu of a notice period of 15 days. The dismissed employee filed a claim against the serious nature of misconduct, indicating that if the employer recognised this right to notice period, the misconduct cannot have been sufficiently serious.

In response, the Cour de Cassation held that the definition of serious misconduct was to be modified, removing any reference to notice period. Serious misconduct is therefore now defined as an event "which is so serious that the employee cannot be maintained within the company."

Effect on employers

As was the case previously, it is not possible for an employer to terminate an employee for serious misconduct, but require the employee to work their notice period. Indeed, once an employee has been terminated for serious misconduct, it should not be possible for the company to accept the employee's continued presence. Serious misconduct as defined by case law therefore requires the employee's contract to be terminated immediately after the disciplinary procedure.

However, the fact that the employee is paid their notice period, or even severance pay, which is not due in the event of serious misconduct, does not prevent the termination for serious misconduct from being valid.