French labour law - Employees, Managers, and Senior Executives - Right to remain silent = not applicable to employees during dismissal or disciplinary proceedings (CC, September 19, 2025)

Should an employee be informed of their right to remain silent during a dismissal interview or disciplinary proceedings?

No, the Constitutional Council answered in its decision of September 19, 2025.

Should we be satisfied with the Constitutional Council's decision of September 19, 2025? No. For the right to a lawyer for employees in dismissal or mutual termination procedures.

Certainly not.

During a dismissal interview, the employee is not on equal terms with their employer.

They are subordinate.

During the preliminary interview, the stakes can be very high, particularly when the employee has a long tenure and is over 50 years old (because it will be more difficult for them to find a job).

Above all, the employee's contact during a dismissal interview is often an HR manager who has prepared the interview with their law firm.

Very often, none of this applies to an employee.

Of course, they can be assisted by an employee advisor, but this is not sufficient in our opinion.

This is why, just as the right to a lawyer during police custody applies, we advocate for employees to have the right to a lawyer, if they wish, during a pre-dismissal interview or a mutually agreed termination. (Our article "Dismissal or Mutual Termination: Advocating for the Right of Employees to Be Assisted by a Lawyer." https://www.village-justice.com/articles/licenciement-rupture-conventionnelle-plaidoyer-pour-droit-des-salaries-etre,46076.html)

1) A surprise decision that runs counter to the Constitutional Council's latest case law

This decision is a surprise and runs counter to recent decisions of the Constitutional Council.

Indeed, the Constitutional Council had applied the right to remain silent in disciplinary proceedings concerning magistrates (notably Constitutional Council Decision No. 2024-1097 of June 26, 2024 https://www.conseil-constitutionnel.fr/decision/2024/20241097QPC).

Furthermore, the decree of January 29, 2025, relating to the ethics and discipline of lawyers, established the right to remain silent in the latter's disciplinary proceedings since "A lawyer subject to disciplinary proceedings is informed of his or her right to remain silent before being heard on the facts with which he or she may be accused" (Art. 187-1 Decree of November 17, 1991).

2) What does the Constitutional Council say? Dismissal is not a sanction constituting a punishment within the meaning of Article 9 of the 1789 Declaration.

The applicants criticized the legislation governing dismissal procedures for failing to provide information to employees regarding their right to remain silent during the dismissal interview, citing a breach of Article 9 of the 1789 Declaration of the Rights of the Child.

This text gives rise to the principle that no one is obliged to accuse themselves, from which the right to remain silent derives.

The Constitutional Council reiterates that during the dismissal interview, the employer must obtain the employee's explanations.

It notes that dismissal does not constitute the exercise by an authority of public authority prerogatives.
 

He adds that the purpose of dismissal is to draw consequences on the employment contract and the conditions of its performance by the parties.

The Constitutional Council affirms that a dismissal or a disciplinary sanction is not a sanction having the character of a punishment within the meaning of Article 9 of the Declaration of 1789.

Therefore, the legislation on dismissal does not violate the requirements of the article of the Declaration of 1789.

Sources :

. Décision conseil constitutionnel 19 septembre 2025, 2025/1160-1161-1162

https://www.conseil-constitutionnel.fr/decision/2025/20251160_1161_1162QPC.htm

. Décision n° 2024-1097 QPC du 26 juin 2024

https://www.conseil-constitutionnel.fr/decision/2024/20241097QPC.htm

. Licenciement ou rupture conventionnelle : plaidoyer pour un droit des salariés à être assisté par un avocat. https://www.village-justice.com/articles/licenciement-rupture-conventionnelle-plaidoyer-pour-droit-des-salaries-etre,46076.html

. Article 187-1 décret du 27 novembre 1991

https://www.legifrance.gouv.fr/loda/article_lc/LEGIARTI000051062040/2025-06-27

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

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

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