Blog

If the employer company belongs to an Economic and Social Unit (“ESU”) with employee representative bodies, they must mention in the invitation letter to the preliminary meeting the possibility for the employee to be assisted by a person chosen in any one of the ESU companies

French Supreme Administrative Court, June 12, 2019, n° 408970

In the case submitted to the French Supreme Administrative Court, a protected employee had been invited to an interview prior to a potential dismissal. His invitation letter to the preliminary meeting had not mentioned the possibility for him to be assisted by a person belonging to the staff of the employer company or of another company of the ESU. The employee had however been assisted during his preliminary interview. The labor inspector had therefore authorized his dismissal.

The Rennes Administrative Court and then the Nantes Administrative Court of Appeal ruled that the dismissal procedure was irregular and quashed the labor inspector’s decision.

An appeal was brought before the French Supreme Administrative Court which confirmed the position of the Administrative Court of Appeal and decided that the invitation letter to the preliminary meeting must mention the employee’s right to be assisted, the specifics of which will depend on “the company’s situation“. Where the employer company belongs to an ESU, the employee summoned may be assisted by an employee of that company but also by an employee of another company belonging to the same ESU. The invitation letter to the preliminary interview must therefore be specific on this point, which it was not in this case.

The French Supreme Administrative Court also considered that the absence in the invitation letter of the mention of the right of the protected employee to be assisted by a person belonging to the staff of one of the ESU companies does not affect the dismissal procedure if the employee has been “fully informed, in due course, of the terms of assistance to which he was entitled“. The key criterion is therefore that the employee be informed of the assistance he is entitled to, regardless of whether this information was mentioned in the invitation letter. In the case at hand, the French Supreme Administrative Court ruled the dismissal procedure was irregular, considering that the employee had not been informed in due course of all his rights, no matter that he had actually been assisted during the interview.