Dismissal of an employee must be for good cause.
Concretely, that means that it must be based on one or more verifiable facts that constitute the true reason for dismissal.The facts invoked must be sufficiently serious to justify dismissal.
Dismissal may be based on personal or economic grounds.Moreover, both employers and employee can agree to termination the contract by mutual consent
Dismissal on personal grounds
This is dismissal for reasons imputable to the employee.
It may of course be disciplinary – i.e. based on the employee’s misconduct (in which case it must occur within two months thereof), or nondisciplinary.
Redundancy for economic reasons
Pursuant to French law, redundancy for economic reasons is defined as dismissal by an employer for reasons that are not related to the employee personally, but are due to an elimination or transformation of jobs, or to a change in an essential element of the employment contract that is refused by the employee, particularly in the context of economic difficulties or technological changes.
Termination by mutual consent
Termination of an employment contract by mutual consent is an agreement signed by both the employer and the employee pursuant to which the two parties decide to bring the employment contract to an end.
This is dismissal for reasons imputable to the employee.
It may of course be disciplinary – i.e. based on the employee’s misconduct (in which case it must occur within two months thereof), or nondisciplinary.
I Disciplinary dismissal:
An employee’s misconduct may be sanctioned by dismissal.
However, misconduct does not always constitute grounds for dismissal: it must be sufficiently serious to justify termination of employment.
A dismissal procedure for misconduct must be initiated within two months of the date on which such misconduct is brought to the employer’s attention.
Any sanction that occurred more than three years prior to the initiation of disciplinary proceedings cannot be invoked in support of a new sanction.
An employee’s misconduct may not be subjected to a double sanction.
II Dismissal due to professional inadequacy:
An employee’s professional inadequacy may constitute a legitimate ground for dismissal when it is based on objective and specific elements that are imputable to the employee.
The inadequacy does not necessarily have to consist of gross negligence.
But it is to be noted that settled case holds that insufficient results do not, in and of themselves, constitute real and reasonable grounds for dismissal.
For dismissal to be based on real and reasonable grounds, insufficient results must be attributable to the employee’s professional inadequacy or fault.
III Dismissal due to incapacity:
Dismissal may result from the employee’s incapacity for carrying out his responsibilities.
Such incapacity must be established by a practitioner of occupational medicine after two medical examinations within two weeks or after one medical examination when keeping the employee at his post would pose an immediate danger to his health or safety or that of third parties.
Dismissal may be envisaged only if there is no possibility of reassigning the employee.
If the employee has not been reassigned or dismissed within a month following the notice of incapacity, the employer is required to resume payment of his salary.
IV Dismissal due to disturbance in the company’s operation caused by the employee’s prolonged or repeated sick leaves:
Prolonged or repeated leaves for illness constitute a legitimate ground for dismissal if such leaves seriously disrupt the company’s operation and the employer must definitively replace the ill employee with another employee.
An employee on leave for nonoccupational injury or illness may be dismissed only if the disturbance caused thereby requires the employer to definitively replace him with another employee. (Cassation Court, labour division, 22 April 2011, 09-43.334)
However, the leave must not have been caused by mental harassment of the employee.
Redundancy for economic reasons
Pursuant to French law, redundancy for economic reasons is defined as dismissal by an employer for reasons that are not related to the employee personally, but are due to an elimination or transformation of jobs, or to a change in an essential element of the employment contract that is refused by the employee, particularly in the context of economic difficulties or technological changes.
The courts have added two economic reasons for dismissal:
- Reorganization in order to maintain the company’s or the business sector’s competitiveness
- Termination of the business
Redundancy of one or more employees for economic reasons is strictly circumscribed by, and conforms to, a particular procedure that differs according to the size of the company’s workforce (companies of less than 50 employees, or of at least 50 employees) and the number of employees involved in the redundancy (less than 10 over a period of 30 days, or at least 10 over the same period).
When, over the same period of 30 days, the redundancy of a single employee is envisaged, the employer applies the procedure that is applicable to individual redundancies.
For a redundancy of less than 10 employees over the same period of 30 days, the employer is required to consult with the employee representatives.
In companies with fifty or more employees, the employer is required to establish a job protection plan to avoid redundancies or minimize the number thereof.
This plan includes a provision for the reassignment of employees whose redundancy would be hard to avoid, particularly older employees or those whose labour characteristics or qualification render their professional reintegration particularly difficult.
Termination of an employment contract by mutual consent is an agreement signed by both the employer and the employee pursuant to which the two parties decide to bring the employment contract to an end.
This type of termination called "rupture conventionnelle" entitles the employee to unemployment insurance if he does not find a job, which is not the case when an employee unilaterally resigns.
We are available to assist you regarding all of issues throughout the process of mutual termination of the contract.
