Whether they are based in France or the UK, there is no legal requirement for companies to conduct annual appraisal interviews.
In France, there is a legal requirement for employers to hold a professional interview with individual employees every two years (with a summary every six years), which is purely focused on training and career development.
A professional interview is not the same as an annual appraisal interview. The latter is broader in scope and includes an evaluation of the employee’s work performance, so the focus is not just on career development.
Generally, employers may decide if they wish to hold annual appraisal interviews. Some may choose to evaluate their employees’ work performance in a way that aligns more closely with the company’s management style, such as implementing an employee rating system.
However, if a relevant collective bargaining agreement is applicable to the company, it may include compulsory annual appraisal interviews which must be carried out in accordance with any provisions set out in the agreement.
Such provisions may include details about interview frequency and content. Employers may be ordered to pay compensation to their employees if these provisions are not complied with, so collective agreements must be checked carefully.
What does “professional insufficiency” mean?
The annual appraisal interview may highlight the fact that an employee has been under-performing in their role. This is classed as “professional insufficiency”, which has two distinct outcomes:
- Insufficiency related to the employee’s inability to perform duties that are reasonably required for the role (professional insufficiency, or insuffisance professionelle).
- Insufficiency related to the employee’s inability to produce results that are proven to be achievable, in accordance with realistic business objectives (insufficient results, or insuffisance de résultats).
It is worth noting that in the UK, such outcomes would be managed according to the company’s defined capability procedure. However, in France professional insufficiency can be the cause of complicated disputes in cases where it results in dismissal, since the term itself is not governed by clear and specific legal provisions.
Instead, case law has defined and developed certain criteria for professional insufficiency over time.
As such, an initial distinction has been made between insuffisance professionelle and insuffisance de résultats, as explained above. In practice, the types of argument used to justify the employer’s decision to dismiss will define which outcome is most relevant to the case.
Broadly, professional insufficiency involves qualitative arguments, and insufficient results quantitative. It is unusual for an employee to be successfully dismissed on insufficient results alone, so generally cases will comprise a combination of quantitative and qualitative arguments. All arguments must be supported by documented evidence and the employee given advance notice of dismissal.
Professional insufficiency does not invoke disciplinary action.
Dismissal on these grounds is based simply and exclusively on the employee’s inability to perform their job properly. This is an important point to note, because even if a precautionary suspension (mise à pied conservatoire) is in place, professional insufficiency is not classed as misconduct because ultimately there is no fault.
This means employers must not use the company’s disciplinary dismissal process, or issue disciplinary-related warnings, where professional insufficiency has occurred.
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