Dismissal on personal grounds

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Dismissal on personal grounds is different to dismissal on economic grounds because it is related to the employee themselves.

All dismissals must be justified by a clear and objective reason of sufficient gravity: a genuine and serious cause that prevents the continuation of the employment relationship.

Personal grounds for dismissal may thus include:

  • Disciplinary grounds arising from wrongful behavior by the employee (ordinary misconduct, serious misconduct or gross misconduct).
  • Non-disciplinary grounds arising from the employee’s inadequate performance or incompetence, repeated or prolonged absences, etc.

 

Grounds for dismissal

 

Disciplinary grounds

Wrongful behavior by the employee

The employer may consider that the behavior of one of its employees (failure to comply with disciplinary rules or with the duty of discretion and loyalty, criticism, insults, violence, errors or negligence committed in the course of their duties) is inconsistent with the normal performance of the employment contract and constitutes professional misconduct.
The employer may therefore decide to sanction its employee. The sanction – or disciplinary action – must be proportionate to the misconduct committed. Indeed, such a sanction is likely to affect the employee’s continued presence in the company, their position, career or pay.

Companies with at least 20 employees must have a code of conduct that sets out the nature and scale of sanctions.

Scale of Sanctions

Disciplinary action may take the form of:

  • A reprimand.
  • A disciplinary suspension (without pay).
  • A demotion.
  • A transfer.
  • Dismissal on the grounds of genuine and serious misconduct: ordinary misconduct, serious misconduct (grave issues that make continued employment impossible) or gross misconduct (intention to harm the employer or the company), with loss of entitlement to payment in lieu of notice and severance pay.

Non-disciplinary grounds

 

Dismissal on personal grounds may also be based on non-disciplinary reasons, such as professional incompetence or inadequate performance, repeated or prolonged absences owing to health or other non-work-related issues, refusal to amend an employment contract, etc.

Nonetheless, there must be a genuine and serious cause that makes it impossible to continue the employment contract.

 

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Procedure

 

Key steps

Step 1: Letter of invitation to a pre-dismissal interview.
Step 2: Five working days (minimum) after receipt: interview with the employee to hear his or her explanation.
Step 3: Two working days (minimum) and one month maximum after the interview: letter of dismissal.

 

 

 

Templates provided by the Ministry for Labor

To ensure greater legal certainty and reduce litigation risks, the Ministry for Labor has provided companies with standard letters of invitation to a preliminary interview and standard letters of dismissal, which the employer can adapt according to the employee’s individual circumstances and the applicable agreements and contracts.

Disputing dismissal

The employee may ask the employer for further clarification regarding the grounds for dismissal set out in the letter, within 15 days of receiving it.

This request may be made by registered letter with acknowledgement of receipt, or be delivered by hand with receipt.

After receiving the employee’s request, the employer has a period of 15 days to provide further clarification if it so wishes. To do so, the employer must follow the same procedure.

The employee may also refer the matter to the industrial tribunal. If the dismissal is considered to be without genuine and serious cause, the employee will be compensated according to a compensation scale that the judge is obliged to accept.

The amount of compensation varies depending on the employee’s seniority and the number of employees in the company. It may not be lower than a minimum amount or greater than a maximum amount, as per the scale in question. If the dismissal is justified but there has been a procedural error, the compensation may not exceed one month’s salary.

 

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Termination payments

 

When the employment contract is terminated, the employer may be required to pay the redundant employee severance pay, compensation in lieu of outstanding paid leave entitlements, and compensation in lieu of notice (if the notice requirement is waived).

 

Important to know: In the event of serious or gross misconduct, the employee will not receive severance pay or compensation in lieu of notice. However, if eligible, they will still receive compensation in lieu of paid leave.

 

 

Severance pay for permanent employees

Permanent employees are entitled to severance pay if certain conditions are met. Severance pay is due to permanent employees who have been dismissed on personal grounds, except in the event of gross or serious misconduct.

It will be calculated based on the employee’s gross salary (from eight consecutive months of service, except in the event of gross or serious misconduct), and will amount to:

  • At least a quarter of a month’s salary per year of service for the first ten years.
  • Then a third of a month’s salary per year from the 11th year. A different method of calculation may be used, which is more advantageous for the employee, according to the provisions set out in the collective agreement or the employment contract, or the practices in force in the company.

The collective agreement applicable to the company may provide for a different method of calculating severance pay. In this case, the company must use the method most favorable to the employee.

 

Compensation in lieu of notice

Compensation in lieu of notice is paid when the employee has not served the notice period given to them upon dismissal.

It is not due if the employee has asked to waive the notice requirement, if the employer agrees to waive the notice requirement for an employee who has resigned, if the employee has been dismissed for gross or serious misconduct, or if there is no notice period owing to the circumstances of the dismissal.

The amount will depend on the length of notice not served and on the salary that the employee would have received had they worked through the notice period.

 

Compensation in lieu of paid leave

Compensation in lieu of paid leave is due when, on the date of termination of their contract, an employee has not taken all the paid leave to which they were entitled.

It is due even in the event of dismissal for gross misconduct, retirement, resignation and termination of the employment contract during the trial period.

To calculate the amount due, several factors must be considered:

  • Basic salary and salary increases.
  • The salary the employee would have received had they not been on maternity leave, paternity leave or sick leave following a workplace accident, for example.
  • Holiday pay for the previous year.
  • Seniority bonus, monthly attendance bonus and on-call bonus.
  • Expatriation bonus.
  • Benefits in kind (accommodation, company car, etc.).

However, the end-of-year bonus, the incentive bonus, the profit-sharing bonus, professional expenses and the 13th month’s pay are not considered when calculating the due amount of compensation in lieu of paid leave.

 

Unemployment

 

Redundant employees may be eligible for unemployment benefits, provided they meet all the necessary criteria.

The back-to-work allowance (Allocation de retour à l’emploi – ARE) is an income maintenance benefit provided by Pôle Emploi under certain conditions. It is intended for registered job seekers who are out of work through no fault of their own. Payments will cease if the redundant employee returns to paid employment.

Eligibility and compensation rules will depend on the type of employee concerned. Both private and former public-sector employees must be out of work through no fault of their own, and must provide evidence of a minimum period of employment on the contract termination date.

The eligibility criteria have changed since November 1, 2019, and now depend on the age of the person in question.

You will find details of the eligibility criteria applicable to private-sector employees on the public service’s website here; those applicable to former public-sector employees can be found here.

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Impact on right of residence

 

All non-EU, EEA, Swiss and UK nationals who wish to live and work in France for more than three months must have a residence permit.

Where a foreign employee is considered to have lost their job through no fault of their own, their situation will depend on the type of residence permit they have.

Holders of a residence permit authorizing the exercise of any professional activity

The residency rights of persons whose residence permit authorizes them to engage in any professional activity will not be affected by the termination of their employment contract. This includes persons with a temporary or multi-year “private and family life” residence permit, a “family member of a European national” resident permit, a permanent residence permit, a “(family) talent passport”, etc.

Holders of a temporary residence permit for employees

  • If the interested party finds a job before their residence permit renewal date, their new employer must apply for a work permit from the DIRECCTE.

 

  • If they are unable to find a job before their residence permit renewal date: In the event of involuntary termination of the employment contract, and on presentation of the Pôle Emploi declaration established by the employer upon termination, the residence permit will be extended for one year.

 

When the permit is next due for renewal:

  • If the interested party has found a new job, they must apply for a work permit from their local Prefecture, which will forward the application to the DIRECCTE for assessment.
  • If they are still out of work, they will receive a new, temporary residence permit for employees, valid until their unemployment insurance rights expire.

 

Holders of a general, multi-year residence permit for employees may engage in any salaried professional activity without observing any particular formalities.

 

Holders of a “Talent Passport” multi-year residence permit

  • If the interested party finds a job before their residence permit renewal date:
    • Prior to the end of the second year of validity of the residence permit, the new employer must consult the Prefecture that issued the residence permit. If the holder no longer meets the conditions for granting a “Talent Passport”, they must apply to change their status at the Prefecture.
    • If they find a job after the end of the second year, a “Talent Passport” for skilled employees or a European Blue Card will allow them to engage in any salaried activity subject to compliance with the conditions of issuance. Failing this, a change of status will be necessary.

 

  • If they are unable to find a job before their residence permit renewal date:

If they have a “Talent Passport” that allows them to undertake salaried work, and if they are unemployed on the renewal date through no fault of their own, the permit will be renewed until their eligibility for the back-to-work allowance (ARE) expires.

To renew the permit, the holder must provide the Prefecture with the following:

  • The employer’s declaration for Pôle Emploi.
  • The certificate from the organization paying the unemployment benefits, showing the remaining period of coverage.