Changes in French dismissal procedures.
The prior arbitration process in France (phase de conciliation) as the first step in employment law proceedings pursuant to Art. L. 1411-1 Code du Travail was fundamentally modified on August 7, 2015. The arbitration offices (bureau de conciliation et d‘orientation), which are run by one representative each from the employer and the employee side as honorary or lay judges, were renamed “bureaux de conciliation et d’orientation” and also given new, expanded powers under Art. L. 1235-1 ff. Code du Travail.
As the name already indicates, the primary task of the arbitration office is to bring the disputing parties to a settlement. It is also the duty of the arbitration office, pursuant to Art. 1454-1-2 Code du Travail, to prepare the legal proceedings prior to the court date before the responsible chambers. The arbitration office may also take investigative measures in this case (e.g. question the responsible employment inspection offices).
If a party is absent or not effectively represented by a lawyer before the responsible arbitration office, this can give rise to a judgment by default pursuant to Art. L. 1454-1-3 Code du Travail. This was not previously possible.
If arbitration is not possible, the arbitration office must refer the case to the various labor courts pursuant to Art. L. 1454-1-1 Code du Travail, i.e. for a dismissal and consent by the disputing parties to a reduced chamber run by two lay judges which must rule within three months. For difficult legal questions or larger disputes, or upon consent by the disputing parties, the legal dispute may also be referred to a larger chamber run by a professional judge of the TGI. The legal dispute may also be referred to the traditional labor courts, as previously.
Also new is the option for the chambers, upon judgment against the employer, to rely on a “Référentiel indicatif” in determining the amount of compensation. This is an indicative table, still to be created, which contains empirical values based on the period of employment, age, and situation of the employee pursuant to Art. 1235-1 Code du Travail. Both parties to the dispute may also (jointly) request that the compensation be determined based on this table.
Independent of this compensation, the employer must of course also pay the legal dismissal compensation (indemnité de licenciement légale) calculated based on the period of employment to the employee being terminated.
A further, mandatory and automatic limitation to the compensation that labor judges had to apply in the case of wrongful dismissal in France and which limited the amount of compensation, was ruled unconstitutional by the Conseil Constitutionnel in August 2015, because the number of employees in the company would have impacted the calculation – unlike for the Réferentiel indicatif (see above). The constitutional court considered this inadmissible.
This article has been prepared for informational purposes only. It is not a substitute for legal advice addressed to particular circumstances. You should not take or refrain from taking any legal action based upon the information contained herein without first seeking professional, individualized counsel based upon your own circumstances. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
Information by ALARIS AVOCATS