Should the grounds for dismissal appear as early as in the notification letter?

August 5th 2015

The notification letter shall mention the subject of the preliminary interview[1]. During the preliminary interview, the employer shall indicate the grounds for the envisaged decision[2]. The letter of dismissal shall include the ground(s) invoked by the employer[3].

For now, the French Supreme Court (Cour de Cassation) literally applies the French Labour Code: in the notification letter for preliminary interview, the employer is only bound to indicate the subject of the notification, not the grievances alleged against the employee[4], unless conventional provisions say otherwise[5].

Therefore, in the notification letter, the employer only indicates that a dismissal is envisaged and stops right there. The details come afterwards, first during the interview, then in the dismissal letter.

However, based on supranational provisions, trial judges resist[6].

A change in judicial practice may occur.

In a recent case judged by the Evreux first instance Labour Court[7] (Conseil des Prud’hommes), an employee dismissed for incompetence, with the addition of disciplinary proceedings (!), challenged her dismissal notably on the ground that the notification letter to the preliminary interview did not mention any motive.

According to the judges, the absence of the grievances alleged against the employee in the notification letter to the preliminary interview does constitute not only a violation of article 57 of ILO Convention no.58, but also of article 6 of the European Convention of Protection of Human Rights relating to the rights of the defence.

They consider that the rights of the defence include two essential requirements:

The employee must receive a communication of the grievances alleged against him / her;
These information must necessarily be delivered to him / her within a reasonable time in order to allow for the preparation of his / her defence during the preliminary interview.

The sanction is severe: invalidation of the dismissal and reintegration of the employee or damages; in this case, a year salary for a year of employment!

If one should follow this line of reasoning, all the grounds presently included in the dismissal letter should be known by the employee as early as in the notification letter in order for him / her to be able to prepare a useful defence.

But also be aware that the notification letter to the preliminary interview shall not be drafted as if the contract termination appears to be certain, otherwise, it is deemed to be a dismissal letter[8].

Clémence Chopineau

[1]     Labour Code, art. R.1232-1.
[2]     Labour Code, art. L.1232-3.
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[3]     Labour Code, art. L.1232-6.
[4]     Cass. Soc. (Labour Section of the Cour de Cassation), May 13th, 2009, no.08-40103.
[5]     Cass. Soc., January 9th, 2013, no.13-00379.
[6]     Paris Court of Appeal, Section 6, Chamber 6, May 7th, 2014, no.12/02642.
[7]     Evreux CPH (first instance Labour Court), May 26th, 2015, no.13/00379.

[8]      Cass. Soc., March 19th, 2014, no. 12-28206.