Individual dismissal

1. Individual dismissal Marie-Cécile Escande-Varniol University of Lyon French labour law « Pontignano » Modène july 2013

2. I – Basic rules Common law of contracts

3. Individual dismissal “La cause réelle et sérieuse du licenciement” • From abuse of authority towards the justification by the employer • Since the Law of 1973 July 13th the judge has to control the real and serious cause

4. I – Why ? Justifications of dismissalII – How ?Procedure of individual dismissal

5. I – justification of individual dismissal Real and serious cause • The cause isexisting, important and objective • The cause is not hypothetical, • The cause is not only light • The cause is not subjective (can be proved)

6. The cause can be economic or non economic (even it’s an individual dismissal) French labour code defines only the economic cause (Art. L. 1233-3) : • It’s not inherent to the person of the employee • It’s result from an abolition or transformation of the job • It’s caused by economic difficulties, technological transformation or economic competitiveness. • All other economic reason is not real and serious.

7. All other redundancies are “personal dismissals” • They are inherent to the person of the employee • They are resulting, or not, from a fault of the employee (we speak about disciplinary or not disciplinary dismissal) • It can result from the behaviour, the work, the absence, anything having a link with professional will of the employer • Always real, serious and objective = 3 types of individual dismissals : with real and serious cause, without real and serious cause and for avoid reason.

8. Valid reasons • Serious reason (incompetence, definitive incapacity, repetition of light faults, …) • Dismissal with allowances, notice • Grave fault (refusal of obey, bad work…) • Dismissal without allowances (no notice) • Serious offense (will to damage the employer) • Dismissal without any allowances, even the allowances for paid leaves)

9. Invalid reasons • Light fault (being late exceptionally, first mild fault at work…) • Subjective reason (disagreement with the employer or another employee, loss of confidence …) • Motive connected to the private life (behaviour out of work, lost of driving licence, behaviour of a member of the family, private comments…) • Notice + Allowances for dismissal AND allowances for dismissal without real and serious cause (6 months of salary)

10. Forbidden reasons • Discrimination (labour union, sexual, racial, religious…) • Maternity or any health motive • Physical aspect • Age before legal age of retirement • Staff representatives without authorization of the administration • Nullity of the dismissal, reinstatement of the employee

11. II – Procedure of individual dismissal • The rules of procedure are substantial in French labour law • There are two types of procedures as the dismissal is disciplinary or not disciplinary (shorter delays for disciplinary dismissals) • There are always two phases : the preliminary interview and the notification of the dismissal

12. The preliminary phase Two stages : • Summons for preliminary interview before a possible dismissal (strong formalism) • Interview : hearing the allegations of the employee • Rights of defence : employee’s advisor (a person working in the firm or an union representative)

13. Notification of dismissal • The « letter of termination », a substantial act • It’s send for the less 2 days after the day of the interview, even if the employee didn’t come to the interview. • The case law considers that all the motives must be written in the letter. • The employer can’t add any other motive which is not in this letter. The judge refuses to hear new motives.

14. The notice • Even the dismissal is definitively prononced, the employee can work two months more (it’s depends of the length of service, more than 2 years = 2 months) • The employer can exempt from the notice but in this case he must pay the salary like allowance • In case of grave fault or serious offence, the employee lost this notice

15. After the dismissal • Documents : • Attestation of employment • Receipt in full discharge • Rights : unemployment benefit **************** New rights from new reforms………. Nicolas…

16. II. New reform in French law :impact on individual dismissal Nicolas Moizard, Université de Strasbourg

17. Act of 14 june 2013 safety of employment • Origin of the process : National collective agreement 11 January 2013 – « a new economic and social model for the competitivity of firms, safety of employment and professional career ». • flexsecurity : new collective dismissal procedure – vocational training – part-time employment. • Aims : to secure job in economic difficulties and avoiding dispute. • Implementation into the Labour Code

18. Flexibility in employment management • Firm collective agreements to secure employment • Collective agreement on geographic and professionnal mobility inside the firm

19. Links with individual dismissal : • Dismissal for economic reasons instead of personal reason. • The choice of individual instead of collective economic dismissal • New court’s procedure

20. A. Firm collective agreement to secureemployment • In case of heavy economic difficulties in the firm, analysed with trade unions. • Impact on organization of working time and remuneration • Maximum term : 2 years • Agreement must be signed by representative trade unions in the firm (50 % of the valid vote at the election of the working council)

21. Interest for employer • To change remuneration and working time specified in the contract of employment • To avoid a social plan if workers refuse the effect of the agreement

22. Interest for workers • If they accept the effects of the collective agreement, the employer can’t breach their contracts of employment for economic reasons.

23. Consequences of the worker refusal : the National collective agreement • « If the worker refuses provisions of the collective agreement, the breach of contract is an economic dismissal whose justification is attested by collective agreement ». • Incompatibility with : • art. 8 par. 1 ILO Conv. n° 158 : « A worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator”. • art 6 ECHR; art. 24 § 2 ESC.

24. Consequences of the workerrefusal : the Act • If one or several workers refuse the application of the agreement, they are dismissed for economic reason. • It’s an individual dismissal, whatever the number of refusals.

25. Incompatibilitywith Directive EC 98/59 (collective redundancies) • Directive 98/59 : « 'collective redundancies` means dismissals effected by an employer for one or more reasons not related to the individual workers…” (art. 1, § 1, a). • ECJ : “redundancy” has meaning in Community law – “interpreted as including any termination of contract of employment not sought by the worker, and therefore without his consent” (ECJ 2004, Commission v. Portugal, C-55/02, par. 50).

26. B. Collective agreement on geographic and professional mobility inside the firm • Voluntary negotiation every three years • Without any project of reducing workforce • Agreement defines the geographic area of workers • The agreement can’t reduce the level of remuneration and classification of workers • The agreement must keep or improve the professional qualification

27. Effect of the refusal of the effect of the agreement • National collective agreement : dismissal on personal grounds. • Law : economic dismissal. • Individual dismissal, whatever the number of refusal

28. C. dispute • Reduction of prescription : 2 years for all action about execution and breach of contract. • Exception : • payment of the remuneration = 3 years • harassment and discrimination = 5 years

29. D. New procedure(Conseil des prud’hommes = joint court) • In case of dispute about dismissal, an agreement could end dispute during the conciliation. • If the parties agree, worker has an inclusive payment. • Judge will have to justify damages.

30. Incompatibility with ECHR • Art. 6-1 ECHR : right to a fair trial • ECJ 21 february 1975, Golder, 4451/70 : « The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally "recognised" fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice. Article 6 para. 1 (art. 6-1) must be read in the light of these principles”.