In France, there is no internal appeals process for dismissal. An employee who has been dismissed for professional insufficiency must therefore bring the matter to the Conseil des Prud’hommes, or the Labour Court, whose purpose is to resolve individual disputes arising from contracts of employment.
A judge will then rule on the employer’s right to dismiss, based on the evidence presented to the court.
The employee’s strategy is likely to take two forms: one, proving that there was no professional insufficiency and two, that the employer’s evidence is not valid.
They are highly likely to argue that the employer did not:
- fulfil training obligations,
- sufficiently manage or organise their department,
- recognise health concerns that rendered them unfit for work.
How should the employer prepare and respond to the employee’s appeal?
At the Labour Court the burden of proof falls to the employer, who must support their decision to dismiss with appropriate, thorough evidence.
As such, when building their original case for dismissal the employer should detail any steps taken to support the employee and help them succeed in their role. They will ideally be able to show that the decision was carefully considered and communicated to the employee in a fair and formal manner.
The employer must also put forward:
- objective, precise, and verifiable facts related to the dismissal,
- proof of damage to the company,
- justification that this damage was caused solely by the employee,
- proof of lasting effects of the employee’s professional insufficiency (note: a momentary lapse in performance would not be considered as valid).
If any of these elements are missing or the employer’s argument appears flawed, there is a risk that the dismissal for professional insufficiency will be deemed unjustified.
What happens if the judge rules in the employee’s favour?
If the dismissal is ruled as unfair, one of two courses of action may follow. The first is that the employee is reinstated in the company, with all the benefits they received before their dismissal.
Should the employer or employee refuse reinstatement, the judge will award compensation to the employee, to be paid by the employer.
The compensation amount varies according to the employee’s lenght of service and the total number of employees in the company, in a scale known as Barème Macron.
What is the purpose of the Barème Macron?
Introduced in 2017, the Barème Macron is intended to be a guarantee of legal security for employers, since it states minimum and maximum amounts for unfair dismissal compensation.
This is important because before 2017 the court decided the amounts itself, which created both disparity and huge uncertainty. Now, however, if the dismissed employee had four years’ service and the company employs fewer than 11 employees overall (for example), the employer would know to expect making a compensation payment of 1-5 months of service.
Can we answer your questions about employee dismissal in France?
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