French employment law - Summoned to a pre-dismissal interview (entretien de licenciement)? 10 lawyer / avocat tips to defend yourself effectively
Being summoned to a pre-dismissal interview is often a traumatic experience for employees, especially since it results in dismissal in 99% of cases.
This article will help you approach this interview with an understanding of your rights.
An employer considering dismissing an employee calls them to a pre-dismissal interview before any decision is made (Article L.1232-2, paragraph 1 of the French Labor Code).
Often, the pre-dismissal interview follows an attempt at a mutual termination agreement.
The civil liability insurance (CLI) has often become a prerequisite for the dismissal procedure.
Tip #1: Am I required to attend this interview?
No.
You are not required to attend this pre-dismissal interview.
The empty chair policy is never a good idea.
It is strongly recommended that you attend to be able to:
1) understand the reasons for the proposed dismissal and; 2) contest the allegations against you (Article L.1232-3 of the French Labor Code).
In theory, this interview should be an opportunity to clarify the facts and find alternatives to dismissal.
However, in 99% of cases, the preliminary interview will result in dismissal.
Tip #2: Can I request a postponement of the dismissal interview?
Yes.
You can ask your employer to postpone the date of this interview.
However, even if you provide a valid reason, your employer is not required to grant your request to postpone the interview.
Their refusal to postpone the preliminary interview does not invalidate the procedure, even if the employee is on sick leave (Cass Soc No. 02-40681 of 26/05/2004).
Tip #3: Can the interview be held remotely?
In principle, the preliminary interview must take place in person at the workplace or in a suitable location.
The Labor Code does not expressly provide for the holding of a remote interview, but case law has permitted it in exceptional circumstances (e.g., an expatriate employee located in Dubai or a health crisis).
The agreement of both parties will, however, be required for the interview to take place remotely.
Tip #4: Can I be assisted during this interview? By whom?
Yes, you have the right to be assisted during this interview.
You may be assisted by a person of your choice from the company's staff (a member of the company's staff or, in the absence of a staff representative, by an employee advisor). When there are no employee representative bodies in the company, you can be assisted either by a person of your choice from the company's staff or by an employee advisor chosen from a list drawn up by the administrative authority (Article L.1232-4 of the French Labor Code).
Your employer must mention this possibility in the invitation letter.
It is strongly recommended that you be assisted during this interview to rebalance the balance of power.
Above all, the person assisting you will be able to write a report of this interview that can be presented before the Labor Court.
Tip #5: What should I say during this interview?
Before this interview, make an appointment with a lawyer who can best advise you on the best strategy to adopt.
During the interview, do not intervene first; let your employer explain all the reasons for the proposed dismissal without interrupting.
Remain calm and professional. The employer must gather your observations on the alleged grievances.
When you speak, you can dispute the grievances alleged against you.
Do not admit the facts.
You must not incriminate yourself.
The dual advantage of being assisted by a third party is that they can (1) rebalance the balance of power by intervening if necessary and (2) write up a report of this exchange at the end of the interview.
This report will detail the interview process (persons present, grievances raised, explanations from the parties, etc.).
Your employer is required to provide all of the grievances alleged against you during this interview.
If the dismissal letter mentions a reason that was not mentioned during this interview, this reason may be dismissed by the judge in the event of a dispute.
The interview report is therefore valuable evidence in the context of a dispute before the Labor Court.
Tip #6: Can I record the pre-dismissal interview?
In principle, you must request permission to record this interview.
However, the illegality or disloyalty of obtaining evidence does not necessarily mean that it is excluded from the proceedings. Case law has recently recognized that covert recordings may be admissible if they are essential to the right to evidence and proportionate to the objective pursued (plenary assembly of December 2, 2023, no. 20-20.648).
Tip #7: Does your collective agreement include specific provisions?
Some collective agreements may provide specific rules regarding the preliminary interview, such as:
- A notice period longer than the statutory 5 working days (Metallurgy Collective Agreement);
- Specific provisions regarding the mandatory presence of a staff representative during the interview;
- Additional guarantees for employees: referral to a joint appeals committee.
For example, Article 27-1 of the Banking Collective Agreement provides that:
"The notice to the preliminary interview and the sending of the dismissal letter are subject to the deadlines provided for by applicable law.
The employee has a period of 5 calendar days from notification of the dismissal to, if they wish, refer the matter to the branch joint appeals committee by registered letter with acknowledgment of receipt.
This appeal is suspensive, unless the employee was dismissed for serious misconduct. However, this suspensive effect cannot extend beyond 30 days." calendar days from the date of referral to the branch joint appeals committee. The dismissal can therefore only be effective after notification from the relevant committee, if it has been requested by the sanctioned employee. The notification must be provided within 30 calendar days of referral.
Any legal proceedings concerning the same dispute initiated by the employee before the industry-specific joint committee (the "appeals" body) has issued an opinion terminates the appeal procedure."
It is therefore essential to check the collective agreement applicable to your employment contract to verify whether it imposes any specific obligations.
If this procedure is not followed, your dismissal will be considered without real and serious cause.
To read all the article, please click on the link below
Source :
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Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
.Paris: 34 rue Petrelle 75009 Paris tel: 0142560300
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
.Lille: : 45, Rue Saint Etienne 59000 Lille – Ligne directe +(33) 03.20.57.53.24
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