The employer shall not justify the dismissal upon the convocation to the preliminary interview

June 3rd 2016

According to well-established case law by the Cour de cassation (French Civil Supreme Court), the employer was not obliged to indicate the grounds upheld against the employee as from his convocation to a preliminary interview with a view to his dismissal. Only the subject matter of the convocation had to be mentioned.

Nevertheless, following a ruling of the 6th employment section of the Paris Court of Appeal and a judgment issued by the Evreux Employment Tribunal1, we reviewed the issue of a possible overturn of case law2.

The lower court judges had considered that the absence of indication of the grounds upheld by the employer in the convocation would not enable the employee to sufficiently prepare his arguments in defense prior to the preliminary interview, which is the only stage of the dismissal procedure during which he has the opportunity to provide an explanation on the allegations upheld against him.

Both decisions retained a violation of the rights of the defense, protected by Article 6 of the European Convention for the protection of human rights and by Article 7 of the Convention no. 158 of the ILO, and pronounced the invalidity of the dismissal.

Yet, in a judgment published, dated April 6, 2016, the Cour de cassation did not follow this line of argument and reaffirmed its traditional position in the terms of the reasons adduced for the judgment hereafter:

Yet whereas the statement of the subject matter of the interview in the convocation letter sent to the employee by an employer who wishes to proceed with his dismissal and the convening of an interview during which the employee, who has the opportunity to be assisted and may prepare his defense against the grounds of complaint formulated by the employer, meet the requirement of loyalty and respect of the employee’s rights; the Court of Appeal which acknowledged that the preliminary interview had been duly held had, without violating the rights of defense had legally justified its decision. 3

Certain employers must nonetheless remain vigilant with regard to the collective bargaining agreement applicable to their company. Some provisions under the collective bargaining agreement may require the indication of the grounds of complaint held against the employee as from the convocation to a preliminary interview, and failure to comply may result in the judge considering the dismissal to be without real and serious cause4.

Prudence with economic dismissals! The employee who is party to a professional safeguard agreement must be aware of the reasons for his economic dismissal prior to his signature thereto, in practice at the latest during the preliminary interview. The case law sets forth that the reasons for the dismissal must be communicated in the document of information on the Employee Safeguard Agreement, in the dismissal letter (mandatory, but sometimes too late!) or any other written document issued or personally sent to the employee at the latest upon his acceptance5. In practice, the letter of convocation to a preliminary interview in view of an economic dismissal is therefore the only reliable means of written communication of the grounds of dismissal, as the letter of dismissal is reiterative thereto.

1 Paris Court of appeal, May 7, 2014, no.12/02.642, and Evreux Employment Tribunal, May 26, 2015, no.13/00.379.
2 See article dated August 5, 2015: “Dismissal: present the grounds upon the convocation?”.
3 Cour de cassation, employment section, April 6, 2016, no.14-23.198.
4 Cour de cassation, employment section, January 9, 2013, no.11-25.646.
5 Cour de cassation, employment section, April 14, 2010, no.09-40.987.

Pierre Marette