France: Employees Made Redundant Must be Informed of the Grounds For Redundancy (August 2010)

Last Updated: 18 August 2010
Article by Christopher Ivey

Employees made redundant must be informed of the grounds for redundancy at the latest by the date they accept the CRP (14 April 2010 n° 08-45.399 and 09-40.987)

The State-run CRP (convention de reclassement personnalisée) redeployment programme must be proposed to employees at risk of redundancy in particular in businesses of less than 1,000 employees, either during their preliminary meeting, or in procedures where no preliminary meeting is required, following on from the final employee representative meeting.

The employee then has 21 days in which to accept or refuse the scheme, acceptance resulting in their employment contract being terminated immediately at the end of the 21-day period, through a mutual agreement. The Cour de cassation has previously held that this mutual agreement does not prevent the employee from challenging the grounds on which the employer considered their redundancy (5 March 2008, n° 07-41.964), and it is therefore important to draft detailed grounds explaining the justification for considering their redundancy. Indeed, as with a termination letter, the grounds referred to are considered as the basis of a case for unfair dismissal, and must be provided in writing (27 May 2009, n° 08-43.137).

Until recently, these written grounds could be sent subsequent to the employee's acceptance, acknowledging this and the termination of their employment through the CRP scheme, and informing them of the economic justification that would have been applied. However, in two decisions dated 14 April 2010 (n° 08-45.399 and 09-40.987), the Cour de cassation held that the employee must be informed of the grounds for termination in writing, at the latest by the time they accept the CRP.

This deadline should be distinguished from the end of the 21-day acceptance period, as the employee can accept the CRP scheme as soon as it is offered to them (even so the employment contract will only be terminated at the end of the 21-day period). This was a point of contention in the above cases, as the Attorney General considered that, in line with the procedure for standard terminations, the grounds for termination should be presented to the employee by the actual date of termination, which would correspond to the end of the 21-day period. However, the Cour de cassation overruled this and held that the employee must be informed before accepting the scheme.

In order to take this new case law into account, we recommend providing the employee with details of the economic grounds referred to during the preliminary meeting or in the memorandum provided to employee representatives, at the same time as the CRP documents. However, in doing so, it is important to bear in mind the fact that the employer is not entitled to take its decision to terminate for a certain period of time after the preliminary meeting (7 or 15 days). The grounds provided to the employee at this early stage are therefore be those on which the redundancy is "envisaged".

Bullying does not need to be long term to constitute harassment (26 May 2010 n° 08-43.152)

The Labour Code and previous court decisions highlighted the fact that the actions considered as bullying must be repeated in order to constitute harassment, and it was on this basis that the Court of appeal in the present case held that while the employee was demoted and sidelined following a long term sick leave, and threatened and insulted after a second period returning to work, these events took place over a relatively short period (of approximately one month), insufficient, bearing in mind the period of sick leave, to characterise harassment through bullying.

The Cour de cassation overturned this decision on 26 May 2010 (n° 08-43.152), holding that actions can constitute bullying even though only over a brief period. It is important to note that the Labour Code still requires bullying to be repeated, over a sufficient period to have the effect of damaging employment conditions, infringing the employee's rights, dignity, mental or physical health, or compromising the employee's future career. However, as a result of this case, it is clear that the repetition does not need to occur over a particularly long period.

Law on conditions for the redeployment of employees at risk of redundancy (Law n° 2010-499 of 18 May 2010)

French case law has defined a principle whereby if considering terminating employees on economic grounds, the employer must search for and propose to employees any appropriate redeployment opportunities within the company and the group to which the company belongs. This has led to what some claim as "unreasonable" proposals, for redeployment to countries where wages are typically significantly lower than in France.

In an attempt to limit such issues, a law was passed on 18 May 2010 defining the procedure and conditions to be respected in the event that a company offers redeployment abroad to employees at risk of redundancy.

It should be noted that this law only governs redeployment abroad. Any redeployment opportunities in France must be proposed to the relevant employees in any case.

This law has incorporated a new article (L. 1233-4-1) into the Labour Code, providing for a specific redeployment procedure for companies or groups with entities outside France, as follows:

  1. The employer must ask the employee prior to termination, whether they would accept to receive redeployment offers outside France, referring to each of the potential locations for redeployment, and ask if the employee has any specific minimum terms in particular in relation to remuneration and location.
  2. The employee must respond to this request stating any specific restrictions, within 6 days of the employer's request. Failure to respond is considered as a refusal of any potential redeployment offers abroad.
  3. The employer must only present such redeployment offers abroad to the employees who have accepted to receive them, such offers taking into account the employee's specific restrictions.
  4. The employee is free to refuse such offers.
  5. If an employee accepts to receive redeployment offers abroad, but none correspond to the conditions set out by the employee at the relevant time, the employee must be informed of this.

In addition, the law has redrafted the terms of Article L. 1233-4 of the Labour Code to include a reference to the remuneration to be offered in relation to such redeployment. However, while it was envisaged to stipulate that the remuneration offered must be "decent, compatible with salaries generally applied in the employee's skills sector, even for a position abroad", the legislation actually only specifies that the remuneration must be "equivalent", without further details. This would seem to leave the matter open for discussion as to what is considered as an "equivalent" salary. Faced with this risk of uncertainty, employers should ensure that the redeployment questionnaire restricts the scope of potential claims by strictly defining the level of remuneration that the employee considers acceptable.

www.twobirds.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions