The French Labour Code does not require an employer to invite an employee to a preliminary meeting when considering issuing a warning letter (or similar disciplinary measure such as a verbal warning). The reasoning justifying this simplified procedure is that the sanction will not necessarily have any immediate or future impact on the employee’s tenure, position, career or remuneration.
The French Supreme Court’s ruling is based on the fact that, when a company is subject to a collective bargaining agreement that stipulates that, except in case of serious misconduct, an employee cannot be dismissed if he or she has not previously received at least two sanctions, a written warning will have an immediate impact on the employee’s presence in the company because such sanction renders their future possible dismissal more feasible. Therefore, in such cases, employees must be invited to a preliminary meeting to be able to defend themselves so that they may try to avoid being sanctioned.
The Court also specified that the same procedural rules apply if a company’s internal work rules (“Règlement Interieur”) also provide for this “2 sanctions before dismissal” rule.
Key Action Points for Human Resources and In-house Counsel
Check your collective bargaining agreement or internal rules before issuing a written warning. Failure to respect the proper procedure will mean that the written warning will be invalid.