The prospect of dismissal is a stressful moment for an employee, sparking numerous questions. What attitude should one adopt upon receiving the dreaded registered letter? How does one prepare and defend their rights? This article aims to address the main questions that arise at this juncture in one’s professional journey.

1. Pre-Disciplinary Hearing Convocation

Article L.1232-2 of the Labor Code holds that any employer considering the dismissal of an employee must, before making any decision, summon them to a pre-disciplinary hearing.

The purpose of this hearing is to allow the employee to present their explanations regarding the contemplated grounds for dismissal.

This step must be followed by the employer regardless of the company’s size or the employee’s tenure.

The summons is sent via registered mail or hand-delivered with acknowledgment of receipt, and the pre-disciplinary hearing cannot take place less than five working days after the presentation of the registered letter or the hand-delivery of the summons letter.

An oral summons is irregular and cannot be considered as valid.

While sending the registered letter is commonly preferred, other means are accepted as long as they allow for the justification of sending and receiving dates. This includes methods like sending via chronopost or electronic registered mail if the employee has expressly agreed to receive electronic registered mail.

The employer sends the summons to the employee’s last known address.

It is the employee’s responsibility to inform the employer of any change of address.

Indeed, the employer is deemed to have fulfilled its obligation and is entitled to continue the procedure even if the employee refuses to accept the registered letter, is unable to collect it, or no longer resides at the address provided to the employer.

Hence, it is strongly advised for the employee not to ignore or refuse a registered letter but to review its contents and prepare accordingly.

2. Content of the Pre-Disciplinary Hearing Convocation

The same Article L.1232-2 of the Labor Code holds that the letter indicates the purpose of the summons.

Courts consider that simply mentioning the contemplation of dismissal is sufficient to meet the legal requirement.

It is not mandatory to specify the type of dismissal being considered.

Some collective agreements require specifying the envisaged grounds for dismissal at the summons stage, allowing the employee to prepare their defense more precisely, but this is not the norm.

The letter also sets the date, time, and location of the pre-disciplinary hearing.

Regarding the date, it should be noted that the hearing cannot take place less than 5 working days after the initial presentation of the registered letter.

A working day includes all weekdays typically worked, excluding the weekly rest day (usually Sunday) and generally non-working holidays. This refers to days from Monday to Saturday.

This 5-day period is provided to allow the employee to prepare for the hearing, especially by seeking the assistance of an authorized person.

Despite any postal delays, this period must be respected, and if the employer finds that the 5-day limit cannot be met, it is wise to postpone the hearing.

The hearing may be scheduled outside the employee’s working hours, but in that case, the employer must pay for the time spent at the hearing as working time.

Similarly, if the employer arranges for the hearing to be held at a location other than where the employee usually works, the employee is entitled to reimbursement for travel expenses.

The summons must also specify how the employee may be assisted.

If the company has employee representatives (Social and Economic Committee), the employee can be assisted by any person from the company during the hearing.

If the company does not have employee representatives, the employee can choose to be assisted by a person from the company or by an employee advisor, whose contact information can be found on the list established by the Prefect for each department, available from the Regional Directorates for Business, Employment, Labor, and Solidarity (DREETS) and town halls in the employee’s place of residence.

Most of the time, the employee is asked to indicate beforehand if they will be assisted, mainly for organizational purposes.

Specific collaborations or circumstances sometimes lead the employer to consider a remote pre-disciplinary hearing.

It is important to note that the Court of Cassation considers a pre-disciplinary hearing by phone as irregular (Court of Cassation, November 14, 1991, No. 90-44195).

This stance is understandable as a phone call does not ensure the identity of the participant in the pre-disciplinary hearing and does not provide the same conditions as an in-person meeting.

Regarding a pre-disciplinary hearing via video conference, judges have deemed it valid when specific circumstances warrant it (employee on detachment or expatriate, health situation related to the COVID-19 epidemic), and the employee agrees to it.

The hearing must take place under optimal conditions for transmitting and receiving both audio and video.

The postponement of the hearing at the employee’s request is not automatic. The Court of Cassation rules that the absence of the duly summoned employee from the hearing does not affect the validity of the dismissal procedure.

Ultimately, the employee is not obligated to attend the pre-disciplinary hearing.

It is highly recommended for the employee to consult with a competent labor law attorney to determine the best course of action based on the contemplated dismissal procedure and, if participating in the pre-disciplinary hearing, to be assisted.

3. Conducting the Pre-Disciplinary Hearing

On the day of the pre-disciplinary hearing, the employee may find that the employer is not alone but accompanied by one or more people.

This situation can be intimidating, especially if the employee attends the hearing alone.

In general, it is noted that judges have considered that the presence of too many people acting for the employer renders the procedure irregular: it ceases to be an individual pre-dismissal hearing and becomes an inquiry before a court.

Thus, from 3 people acting for the employer, judges have deemed the procedure irregular (Court of Cassation, Social Chamber, January 20, 2016, No. 14-21346).

The employer cannot be assisted by someone outside the company, such as a lawyer or bailiff.

During the hearing, there is an exchange between the employer and the employee: the employer explains the reasons for considering dismissal, and the employee presents their explanations, recalls the context, and provides any justifying evidence.

At the pre-disciplinary hearing stage, the employer is not required to present evidence supporting the decision under consideration. It is only in the event of the employee contesting the employer’s decision that the employer will need to justify it.

Following the hearing, the employer must not indicate that a decision has been made. The Labor Code mandates a minimum reflection period, so the dismissal notification letter can only be sent at least two working days after the hearing date.

Failure to respect this timeline makes the procedure irregular, entitling the employee to compensation.

When the employee is assisted, the employee advisor or assisting person may prepare a report of the hearing, which can be submitted in case of contestation of the decision.

LBV AVOCATS is available to assist you with your procedures.