Whereas previously the abandonment of a job by an employee could constitute a misconduct that justified a dismissal, the so-called Labor Market Law has introduced a presumption of resignation when an employee voluntarily abandons his/her job, in order to limit the use of this practice by employees.
In two rulings handed down on January 18, 2023, the Cour de Cassation (French Supreme Court) recalled that while the judge cannot substitute him/herself for the employer in establishing and applying the criteria to determine the order of dismissals (i.e. the order in which employee(s) will be dismissed) in the context of a dismissal on economic grounds, in case of dispute on the application of said criteria, the employer must disclose to the judge the objective elements on which it relied in order to make its choice.
Wherever a dismissal is declared null and void because it is based on a prohibited or unlawful ground, the judge is required to examine the other grounds for dismissal, if any, that have been raised in order to determine the amount of the specific compensation to be awarded to the employee… But only if he/she is expressly asked to do so by the employer.
With respect to dismissals on disciplinary grounds, the one-month period for notifying an employee of his/her dismissal is counted from date to date. The setting by the employer of a date for a new pre-dismissal interview, due to the non-attendance of the employee at the initial interview, does not interrupt the one-month period.
The 2022 Rectifying Finance Law of August 16, 2022 provides for social measures to improve purchasing power that the employer can take advantage of.
These measures include, but are not limited to, the new value-sharing bonus, more flexibility on professional expenses, the buyback of RTT days and new provisions to support employee savings.
In case of unsubstantiated abuse of a fundamental freedom relied upon to justify the dismissal of an employee, the dismissal is void even if other grounds could justify the termination of the employment contract.
In a decision issued on June 29, 2022, the Cour de Cassation (French Supreme Court) applied for the first time the principle of “contaminating ground for dismissal” in the context of the use of freedom of expression.
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