How to sanction an employee under French Law ?
The disciplinary procedure is very strict under French Law.
For any kind of sanction, you must keep in mind that:
- Financial penalties are forbidden,
- Penalties cannot be discriminatory,
- The misconduct must be sanctioned in a maximum of 2 months after the day the employer was informed of,
- An employee cannot be sanctioned twice for the same misconduct : as an example the same misconduct cannot ground a warning and then a dismissal
Also please note that the collective bargaining agreement applying to the Company and the Code of Conduct might contain specific provisions for the disciplinary sanctions.
The warning is a written call to order for an employee.
As an example, these misconducts can lead to a warning when the employee:
- Was late at work,
- Refused to follow a directive.
The warning can’t affect the career, the duties or the salary of the employee.
French law does not provide with a specific procedure for the notification of the warning: the warning can be notified by email or by letter.
- Disciplinary Demotion
The demotion is a penalty that causes a lower qualification and salary.
The disciplinary demotion can for example be grounded on an insubordination or a bad management.
This demotion cannot however be imposed to the employee: the employee must agree with this sanction and could be dismissed if not.
The classic disciplinary procedure must be respected as follows:
- The employee is invited by letter to a meeting during which both part could explain themselves,
- A 5 day delay between the convocation and the interview applies,
- The employee can be assisted during the interview,
- The sanction is notified in a minimum of 2 days after the meeting,
- In case of a refusal, the employee can be dismissed.
- Disciplinary suspension
The employee can be suspended for a period of time, which duration must be provided in the Code of conduct to be valid.
The misconduct leading to the disciplinary suspension has to be serious enough, as an example:
- Inappropriate remarks made to colleagues;
- Using the company equipment for personal reasons.
The disciplinary suspension must follow the classic disciplinary procedure as mentioned above.
- Conservative suspension
The employee can also be suspended in case of a gross misconduct before he get properly sanctioned, usually dismissed. That is why the conservative suspension is not a sanction itself.
The misconduct of the employee has to be serious. For example, it could be a violent behavior or suspicion of sexual/ moral harassment.
The suspension is not paid unless the employer decides not sanction the employee.
No disciplinary procedure must be followed to notify this conservative suspension. It only has to be respected once the sanction is decided and as mentioned above (convocation, interview and notification).
- Dismissal for misconduct
A “simple” misconduct can ground a dismissal as:
For type of ground, the employee will get a dismissal indemnity and a notice period.
The classic disciplinary procedure must be respected as mentioned above.
- Dismissal for gross misconduct
The gross misconduct causes the immediate termination of the work contract of the employee and he won’t be entitled with a dismissal indemnity or a notice period.
Example of gross misconducts:
- Racists comments;
- Theft of goods that belong to the company , no matter the value,;
- Physical violence on a client of the company.
The classic disciplinary procedure must be followed and can be added to a conservative suspension, usually notified with the convocation to the pre dismissal interview.
The employee can also be dismissed for serious offence (“faute lourde”) but the French Supreme Court is very strict with this ground and requires that the employer must prove the malicious intent of the employee, an intentions quite impossible to bring. Hence, we recommend not to ground a dismissal on a serious offence.