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Computation of damages for a dismissal annulled because it infringes the right to take legal action

In a decision of 21 November 2018, the French Supreme Court held that a dismissal based on a legal action brought or likely to be brought by an employee against his employer is null and void as it violates the fundamental right to undertake legal action. The Court added that in case of reinstatement, the employee is entitled to the payment of damages equal to the amount that he would have received between the date of his exit from the company and the date of his reinstatement, without deduction of the replacement income earned during this period of time.

In this case, an employee had been dismissed on personal grounds. The dismissal letter mentioned that the employee had threatened the employer to undertake legal proceedings against the company. The employee challenged the validity of his dismissal before the Labour Court.

Declaring the dismissal was null and void for it infringed the right to undertake legal action, the Court of Appeal held that the replacement income perceived by the employee must be deducted from the backpay due for the period between the date of the dismissal and the effective date of reinstatement.

In support of the appeal before the French Supreme Court, the employer claimed that only the reference in the dismissal letter to a legal proceeding actually undertaken by the employee may have constituted an effective infringement of the right to take legal proceedings, thus giving rise to the nullity of the dismissal.

The French Supreme Court rejected this argument. The only reference in the dismissal letter to a legal proceeding envisaged by the employee is sufficient to constitute an infringement of the fundamental freedom to undertake legal proceedings, thus causing on its own the nullity of the dismissal.

On his part, the employee criticized the Court of Appeal for having partially rejected his compensation claim on the ground of the nullity of his dismissal by deducting the replacement incomes from the backpay due for the period between the date of his eviction and the date of his reinstatement.

The French Supreme Court reversed the decision on this point. The employee who applies for reinstatement on the basis of a null and void dismissal is entitled to the payment of damages equal to the amount of remuneration he should have received between his exit from the company and his reinstatement, without any deduction of any replacement income he may have received during this period.

French Supreme Court, 21 November 2018, n°17-11.122.