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Failure is not an option

French Supreme Court, June 5, 2019, n° 18.10.050

An X-ray airport security specialist (position for which the applicable regulations impose a certified training) who fails on several occasions the vocational training the employer is bound to implement may be terminated based on her professional incapacity to perform the tasks for which training is legally required.

In the case at hand, the employee had secured her initial certified training, but failed her vocational training four times.  Although it provides for the consequences of a failed initial certification (and re-certification), UE Regulation 185/2010 of March 4, 2010 is silent on the consequences of a failure of the vocational training it also imposes.

The employee’s four failures nonetheless created a sensitive situation security-wise making her continued employment difficult. After the Court of appeal had considered her termination was unfair – for the Regulation did not provide for the consequences of a failed vocational training – the French Supreme Court however confirmed the position held by the Labour court, whereby the employer had a valid ground to terminate the employee, based on her professional incapacity to perform the tasks for which training is legally required.

On this topic, the French Supreme Court thus aligns its position on its most recent case law on the validity of the dismissal of an employee working in the restricted areas of an airport, whose official authorization had been withdrawn by the public authorities (FSC, November 28, 2018, n°17-13.199).