An employer has to follow various inflexible steps in order to make an employee redundant in France.
1- Identifying a redundancy situation
This is the first and maybe the most important step. Article L. 1233-3 of the French Code of labour sets out the definition of what is considered as a redundancy in French law. A dismissal amounts to a redundancy if 3 conditions are met :
a/ The redundancy is a dismissal for an economic reason i.e. which does not relate to the employee’s conduct or capability.
b/ Such dismissal should result :
either from the termination of the employee’s position
or from the transformation of the employee’s position
or from the employee’s refusal of the modification of his/her contract.
c/ Condition (b) above must be triggered :
either by economic difficulties
or by technological changes
or by the reorganisation of the company in order to save its competitiveness
or by the closure of the company
The ’Loi El Khomri’ above mentioned has provided some precisions as to the meaning of ’economic difficulties’ stated in condition (c).
What amounts to ’economic difficulties’ might be :
either the meaningful evolution of an economic data like a decrease of the orders, the turnover, an operating loss, a cut in the cash flow or in the gross operating
or any other element that might justify these difficulties
The drop of orders or turnover should extend :
over 1 quarter at least where the company has less than 11 employees
over 2 consecutive quarters where the company workforce is between 11 and 49 employees
over 3 consecutive quarters where the company workforce is between 50 and 299 employees
over 4 consecutive quarters where the company has 300 employees or more
If the employer (or his legal adviser) is able to go through the definition of the redundancy, he can proceed with the next step.
2- The employer must draft the pool for selection and the selection criteria
The pool for selection groups the employees of the same professional category where the position is terminated. The employer will apply the selection criteria in order to select the employee who shall be subjected to the redundancy procedure. The selection criteria are usually set out in the applicable collective bargaining agreement but they include the family burden, the employee’s seniority, the disability (if any) or the employee’s senior age, the professional qualities.
Once the employer has selected the relevant employee, he can move to the next step.
3- The employer must look for alternative employment
The employer shall look for redeployment positions in the company or in the group that would be offered to the employee considered for a redundancy. This is a very important step because a redundancy would amount to an unfair dismissal if the employer fails to do that search. The search is limited to the French territory unless reverse request of the employee.
Once the search is done, the employer can proceed.
4 - The employer invites the employee to a meeting
The employer has to comply with a minimum period (5 business days) between the invitation delivery and the day when the meeting takes place. Further, the form of the invitation must comply with various statutory requirements. During the meeting, the employer provides various information and document to the employee :
the employee is advised that he/she at risk of redundancy
the employee is offered the alternative employment(s) if any
the employee is informed of the possibility to be redeployed abroad if the company has remote establishments
the employee is provided with the possibly to start training programs (’contrat de sécurisation professionnelle’ or ’congé de reclassement’ depending on the size of the company) together with written information on the redundancy situation
5- Notification of the termination
The employer sends the letter of termination to the employee. The letter should comply with statutory contents, otherwise the termination would amount to unfair dismissal. Further, the letter cannot be sent before minimum periods (7 business days for an employee, 15 business days for a manager).
6- Final step : the employer shall advise the labour administration ’Direccte’ within 8 days of the termination.
The employer should be advised that the French redundancy procedure is even more complicated where more than 1 employee is made redundant : it might involve the employee representatives, the works council, the trade unions and the labour administration.
