Most disciplinary dismissals successfully challenged before the labor courts were not overturned on the reality of the facts. They were overturned on procedure, characterization, or the reasons given. These technical mistakes generally cost many months' salary, even though the alleged facts were fully established.
A review of the five most frequent mistakes in disciplinary procedures and the reflexes needed to avoid them.
Mistake no. 1: exceeding the time limit for disciplinary action
Article L.1332-4 of the French Labor Code sets an absolute rule: no misconduct may give rise to a sanction more than two months after the employer became aware of it. Once this period has expired, the facts are time-barred and can no longer be sanctioned.
The rule seems simple, but it accounts for a considerable number of lost cases, owing to a misinterpretation of the starting point of the two-month period, or even a complete oversight of it, with the result that the alleged facts can no longer be relied upon.
The right reflex: document the date on which the facts came to your knowledge for evidentiary purposes, and always make sure that no time-barred facts are among those raised during the preliminary interview or in the dismissal letter.
Mistake no. 2: choosing a disproportionate characterization
A real fact may justify a dismissal, but not necessarily the one the employer has chosen. Case law distinguishes several levels of seriousness, each with different consequences.
- Simple misconduct: dismissal with notice and statutory severance pay
- Serious misconduct (faute grave): dismissal without notice or severance pay, but requires solid justification
- Gross misconduct (faute lourde): dismissal without notice or severance pay, reserved for acts committed with intent to harm the employer. It is the only level of misconduct that allows the employer to hold the employee personally liable for damages. Since a 2016 decision of the French Constitutional Council (no. 2015-523 QPC, March 2, 2016), it no longer deprives the employee of payment in lieu of accrued paid leave.
The classic mistake is to characterize as serious misconduct facts that do not justify it, in order to save the notice period and severance pay. The court then recharacterizes the termination as a dismissal for simple misconduct, or even as an unfair dismissal (without real and serious cause), and the company owes the notice and severance pay, in addition to possible further damages.
A solid dismissal for simple misconduct is better than a fragile dismissal for serious misconduct. The apparent saving on notice is frequently lost in litigation and may result in a higher overall cost.
Mistake no. 3: drafting an insufficiently reasoned dismissal letter
The dismissal letter definitively sets the boundaries of the dispute. Any fact not mentioned in it can no longer be raised before the court. Any fact mentioned imprecisely may be disregarded for lack of reasons.
Recurring drafting errors:
- General wording such as "inappropriate behavior" without describing specific facts
- No dates, places, circumstances, or identities of the persons involved
- Multiple grounds juxtaposed without clear prioritization
- Verbatim repetition of the preliminary interview invitation without further detail
- Unconnected grounds that weaken the whole instead of strengthening it
The letter must enable the court to understand exactly what is alleged, when, how, and why it justifies the sanction chosen. It should not be a theoretical legal document but a substantiated factual account.
Nor must the letter confuse disciplinary misconduct with professional inadequacy, which does not fall within the disciplinary sphere and may call the entire dismissal into question.
Mistake no. 4: neglecting the invitation and interview procedure
The dismissal procedure is governed by formal rules, failure to comply with which entitles the employee to damages for procedural irregularity, even where the dismissal is justified on the merits.
Points of vigilance:
- Time between the invitation and the preliminary interview: at least five working days (jours ouvrables, not jours ouvrés)
- Content of the invitation: specific purpose, date, time, place, and the right to be assisted
- Who conducts the interview: only the employer or a duly authorized representative, not outside counsel
- Conduct of the interview: a genuine exchange with the employee, not a mere reading of the intended sanction
- Time between the interview and notification: at least two working days, at most one month
Each of these points can give rise to a claim for procedural irregularity, with damages in addition to any that may be due in broader litigation.
Mistake no. 5: ignoring the context and the employee's history
Labor court judges do not look solely at the alleged facts. They assess the sanction in light of the overall context: the employee's length of service, career record, disciplinary history, how comparable situations were handled, and the timing of the dismissal.
Several situations significantly weaken a procedure, even where the facts are real:
- Dismissing an employee with long service for a first breach
- Dismissing an employee after a harassment or discrimination complaint or a period of sick leave (risk of nullity as a retaliatory measure)
- Dismissing on the basis of facts known and tolerated for months
- Dismissing for facts also committed by other employees who were not sanctioned (breach of equal treatment)
- Dismissing shortly after a positive performance review or a pay rise
Conversely, referring to the employee's disciplinary history in the dismissal letter may backfire on the company, since no one may be sanctioned twice for the same facts. Particular vigilance is therefore required to avoid the various pitfalls specific to disciplinary dismissals.
The method that secures the procedure
Avoiding these five mistakes requires a systematic method, applicable to every disciplinary procedure.
- Precisely date when the facts came to your knowledge and initiate the procedure within two months
- Calibrate the characterization to the real strength of the case, not to the desired savings
- Draft the dismissal letter as if it will be read by a judge (it probably will be)
- Scrupulously respect the time limits and formalities of the invitation
- Check that the decision is consistent with the overall context of the case and with precedents within the company
The role of counsel in securing the procedure
Involving specialized counsel makes it possible to secure the procedure as a whole, from organizing the timetable and calibrating the sanction to preparing for the preliminary interview and drafting the dismissal letter. It makes it possible to focus on the most relevant elements of the case, define an appropriate strategy, and avoid hasty decisions that could weaken the case.
