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An employer wishing to dismiss an employee who refuses a modification of their employment contract following a TUPE transfer must demonstrate the existence of a valid economic ground

In a decision of 1 June 2016 (No. 14-21143), the French Supreme Court had suggested that an employee who refused to change his place of work resulting from a transfer of his employment contract to a new employer could be dismissed for a sui generis reason (a reason of its own).

The French Supreme Court reviewed this case law in its decision of 17 April 2019 (No. 17-17880).

Firstly, the Court points out that “where the application of Article L. 12241 of the Labour Code [French TUPE provisions] leads to an amendment of the employment contract other than the change of employer, the employee has a right to oppose it“.

Then, the Supreme Court made it clear that the dismissal resulting from a refusal of this proposed modification is necessarily a redundancy because the ground for dismissal is “not inherent to the person” of the employee.

Given that, in the case under review, the new employer intended to propose to the transferred employees a change in their place of work for reasons of internal organization, the Court considered the new employer had to follow the procedure for contractual changes based on economic grounds, which implies in particular complying with a one-month cool-off period and, in the event of the employee’s refusal, make him redundant.