Protected employees may be notified of the termination of their employment contracts for economic reasons as a protective measure

Where the employer is required to offer a professional security contract (“CSP”) to the employee, whose redundancy is envisaged, a 21-day consideration period is granted from the date when the information document on this outplacement scheme proposed by the Pôle Emploi is submitted to the employee.

The Unedic agreement relating to the CSP (Article 5 of the agreement of 19 July 2011 transcribed in Article 4 of the agreement of 26 January 2015) provides that when the period for sending the redundancy letter set up in Articles L.1233-15 and L.1233-39 of the French Labour Code expires before the end of the 21-day consideration period, the employer may send a registered letter with acknowledgement of receipt to the employee specifying that this letter will only be deemed a notification of redundancy if the CSP is not accepted.

Until now, protected employees were excluded from this rule since notification can only take place after authorization by the labour inspectorate.

In a decision of 19 December 2018 (No. 17-24007), the French Supreme Court admitted that if the protected employee is informed that the notification of redundancy or termination of the employment contract by mutual agreement based on the employee’s accepting the CSP will only take place after authorization by the labour inspectorate, the employer may send him/her a letter of notification as a protective measure.

From a practical point of view, this decision makes it possible to send protected employees a letter of notification as a protective measure at the same time as other employees and thus to reduce the duration of the procedure, particularly if the employee opts out of the CSP.