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Redundancy for economic reasons: economic operating losses alone do not justify dismissal

Article abstract:

To justify redundancy, it is essential to demonstrate the serious and lasting nature of economic difficulties, such as a significant drop in orders or sales, technological change, reorganization of the company, or cessation of activity.

The French Supreme Court insists that these difficulties, notably operating losses or deteriorating cash flow, must be significant, serious and lasting.

In the absence of sufficient evidence of the extent of these difficulties, the dismissal may be deemed to be without real and serious cause.

(Cass. Soc. October 18, 2023, no. 22-18.852)

Difficultés économiques entreprise

Read the full article:

Article L. 1233-3 of the French Labor Code sets out a list of objective criteria for determining the existence of economic difficulties justifying redundancy, including :

    • Significant drop in orders or sales, operating losses, deterioration in cash flow;
    • Technological change ;
    • Company reorganization ;
    • Company ceases trading.

Legal provisions lay down specific conditions for declining orders and sales. For operating losses or cash flow deterioration, legal provisions require only a “significant change”.

The French Supreme Court has therefore clarified the conditions under which these factors, which are not specified by legal provisions, can justify redundancy for economic reasons, stating that they must be “serious and lasting” in order to justify redundancy for economic reasons. The Court of Cassation had already stated in the past that changes in EBITDA could justify redundancy if the deterioration in this economic indicator was of a “serious and lasting” nature. In other words, the employer cannot invoke economic difficulties if the deterioration in the economic index concerned is only slight or temporary.

Mere temporary or minor disruptions do not justify redundancy. Here, the Cour de cassation has made similar clarifications concerning business losses.

To be considered grounds for redundancy, business losses must be significant, serious and lasting in the sector concerned, and of a sufficiently large scale. If there is insufficient evidence of the extent of the deterioration in economic indicators, the dismissal may be considered to be without real and serious cause.

It is advisable to enlist the support of experts such as DESRUMAUX AVOCATS when implementing redundancy procedures.

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Difference is wealth: The imperative of an inclusive society

At DESRUMAUX AVOCATS, we believe that diversity is the fabric of our society, and inclusion its driving force.

On November 20, 2023, we were honored to welcome the Centre Ressources Régionales Trisomie 21 (CRR Trisomie 21) to our premises, thanks to the Communauté des Entreprises s’engagent Gironde. This flagship association in New Aquitaine symbolizes an unwavering commitment to supporting people with Down’s syndrome, from childhood to adulthood, to enable them to choose and live an integrated life within society in an ordinary environment.

CRR Trisomie 21 works to make access to the mainstream a reality for people with intellectual disabilities.

A questionnaire devised by the Center brought us face to face with an often overlooked truth: individuals with Down’s syndrome have the same rights and duties as everyone else. Integrating these people into the world of work is not just a question of social responsibility; it’s an opportunity for growth and mutual enrichment.

The benefits for companies are manifold, ranging from opening up employees’ minds to adding deep-rooted human values within the company.

reunion equipe cabinet avocat bordeaux

In concrete terms, what are the benefits for a company of hiring people with intellectual disabilities?

Integrating colleagues with Down’s syndrome reveals an unexpected richness. These valuable interactions refocus our perspectives, inviting us to move away from egocentricity and embrace a corporate culture based on empathy and mutual support.

Decentralization of the Employee from Himself :

By sharing their daily lives with colleagues with Down’s syndrome, employees discover a deeper dimension to their work. This experience leads them to consider the perspectives of others, fostering a spirit of collaboration and open-mindedness. They learn to value the unique contributions of each individual and to see beyond their personal concerns, creating a more harmonious, group-centred workspace.

Autonomy and Competence:

With the assistance of CRR Trisomie 21, these employees are not only competent, but also endowed with the ability to become autonomous in their tasks. This autonomy is the result of a workstation carefully prepared and adapted to their needs, enabling them to integrate smoothly and productively into our teams.

Financial benefits for the company :

A commitment to inclusion also offers tangible benefits. Companies that hire people with intellectual disabilities can access financial incentives. These incentives encourage the adoption of best practices in inclusion and reduce the costs associated with adapting workstations.

De-escalating conflicts :

The presence of colleagues with Down’s syndrome has a calming effect on the workplace. Their approach to life and daily challenges, often marked by exemplary resilience, inspires and facilitates conflict resolution. Their interactions tend to reduce tensions and promote constructive dialogue.

Establishing Benevolence:

Caring is not just an abstract concept, but a tangible reality in an inclusive company. Awareness of the challenges and successes of colleagues with Down’s syndrome nurtures a mutually supportive environment. This manifests itself in increased patience, attentive listening and a willingness to help each other.

Add Human Values :

Hiring people with Down’s syndrome is synonymous with introducing a set of human values into the company’s DNA. These values, such as authenticity, commitment and perseverance, become pillars of the corporate culture, influencing day-to-day interactions and decision-making at all levels.

In short, the inclusion of people with Down’s syndrome is not just a socially responsible approach, it’s a lever for cultural transformation that can enrich your company in every way. It reshapes teamwork, strengthens the internal social fabric and propels the company forward as a forerunner of a profoundly inclusive society.

To integrate a person with an intellectual disability into your company, and in particular a person with Down’s Syndrome, you need to take a structured, well-thought-out approach.

Here’s how it works:

Identify appropriate tasks :

Start by determining which tasks within your company would be suitable for an employee with Down’s syndrome, taking into account his or her abilities and level of autonomy. The aim is to strike a balance between the company’s needs and the individual’s skills. The tasks chosen must enable the employee to feel valued and make a significant contribution to the team.

Adapting the Workstation :

Once the tasks have been identified, adapt the workstation to make it accessible. This may involve physical adjustments, such as workspace ergonomics, or process modifications, such as simplifying instructions. The use of visual aids, clear task sequences and cues to help structure time and activities are effective strategies. It may be a good idea to set up a sequencing of tasks to be carried out in the form of photographs or visuals to help this person in his or her work.

Training and support :

Make sure the employee receives adequate training and ongoing coaching. Patience and repetition are key to helping transfer skills and knowledge. It can also be helpful to assign a mentor or support colleague who can act as a regular point of contact for the employee with Down’s syndrome.

Service agreement :

Consider concluding a secondment agreement with CRR Trisomie 21. This allows for a temporary collaboration, giving both the company and the employee time to adapt. The duration of this agreement is a maximum of two years, providing a sufficient trial period before potentially leading to a permanent employment contract.

Long-term outlook :

Keep in mind that the ultimate goal is for the employee to be able to benefit from a normal employment contract in the long term. This means seeing their integration as a long-term commitment, with clear development plans and opportunities for advancement.

Managing Constraints :

Recognizing that each person with Down’s syndrome is unique and may present specific challenges is crucial. Understanding and adapting to these challenges is an integral part of the inclusion process. By anticipating and actively managing these aspects, the company can ensure a positive experience for all employees.

Communication and awareness :

Educate your staff about Down’s Syndrome and intellectual disabilities. This can take the form of training sessions, newsletters or open discussions. Effective communication and increased awareness help prevent misunderstandings and promote an inclusive corporate culture. Remember, too, to adopt FALC “facile à lire et à comprendre” (easy to read and understand) language wherever possible. The pictogram below indicates when an article is written in this language.

By integrating these steps into your employment strategy, you create a work environment that values diversity and inclusion, while benefiting from the unique talents that people with intellectual disabilities can bring to your business.

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The strength of company negotiation: three negotiation themes to adapt the law to your company’s needs

Company agreements have recently been given primacy over other agreements that may be concluded at higher levels, and sometimes even over the law.

This primacy comes into play in many areas, three of which seem particularly interesting for negotiation in your company.

The main advantage of company negotiation is that it enables you to adapt the law to your company’s real needs.

With the primacy of company agreements, you can, for example, put in place within your company a specific mechanism for organizing working hours, adapted to variations in your company’s activity.

It is therefore important to seize this opportunity and negotiate directly within your company, especially as company negotiations are open in particularly important areas, in which we invite you to enter into negotiations, whatever your workforce and whether or not employee representatives are present in your company.

  • Company negotiations on the organization of working hours

If there is no industry-wide agreement on the organization of working hours in your sector, you can sign a company-wide agreement that sets out the terms and conditions of such an arrangement.

If a branch agreement already exists, the company agreement can replace it with guarantees that are at least equivalent, but it will take precedence over the branch agreement. We’ll just have to be more careful when drafting it.

This can take several forms:

– It can vary the working week between high and low periods and organize compensation between these periods in the form of rest days;

– These agreements may limit weekly working hours;

– These mechanisms are particularly useful for organizing and smoothing the counting of overtime: a reference period is determined, and a limit of hours is set. Time worked in excess of this limit will constitute overtime, and must be settled as such.

Example: for an annual arrangement of working hours, this limit is set at 1607 hours.

The total number of hours worked by the employee should be calculated, and any overtime worked in excess of the maximum weekly limit set by the agreement and already recorded (paid or recovered during the year) should be deducted. The remaining hours in excess of this limit will be paid to the employee at the end of the reference period.

This system allows overtime to be recorded over a given period rather than every week, so that overtime payments can be adapted to variations in company activity.

If an employee works a lot of hours in a given week, but less in the following week, the average overtime hours will result in less or no overtime being recorded.

This means you can arrange your working hours to suit your needs or the pace of your business, regardless of the number of employees working in your company.

If you are faced with highly variable working periods, we strongly recommend that you make use of this possibility and negotiate working time arrangements within your company.

  • Company negotiations on compensation

You can also decide to set up specific bonuses within your company, which can also be set up through a company agreement.

While these bonuses can also be set up through a unilateral commitment on your part, setting them up through negotiation allows you to obtain the agreement of employees or their representatives, and also to discuss the concrete implementation of this bonus, its calculation and payment procedures.

Adopting this bonus system by means of an agreement means that employees are involved in determining the terms and conditions of this bonus, and more generally feel integrated into the decision-making process relating to the company’s development, and increase their motivation to participate in the company’s evolution.

Various bonuses can be set up in this way: target bonus, productivity bonus, seniority bonus, etc.

Here again, the introduction of bonus payments by company agreement enables you to adapt the law to your company’s real needs.

For example, if you want to build loyalty among your employees, you could decide to set up a seniority bonus to be paid from the second year of effective presence within your company, and thus motivate your employees to stay with your company for the whole of this period and even beyond.

  • Negotiations on the organization of work in your company

You can also use company-level negotiations to organize specific working arrangements tailored to your business.

At company level, for example, you can adopt an agreement on telecommuting within your company.

In this area, too, the company agreement takes precedence over any agreement concluded above it.

In this agreement, you can set out the conditions under which your employees can telework, and the operating procedures for this special organization.

It will also be necessary to strictly define the terms and conditions for calculating working time for employees teleworking.

Here again, it’s a good idea to be able to implement work organization methods adapted to your company, such as telecommuting, rather than having unsuitable standards imposed by the legislator or social partners at branch level.

Company-level negotiations are of vital importance, especially for smaller companies.

It enables you to tailor the law to your needs and requirements, and avoids having inappropriate standards imposed on you in relation to your workforce, for example, or in relation to the specific conditions of your business or the working methods you have implemented within your company.

Although company agreements take precedence in many areas, we must remain vigilant with regard to the articulation of standards in labor law, which remains a complex subject to grasp.

We strongly recommend that you use this leverage within your company, with the support you need to deal with the particularities of employment law.

Naturally, DESRUMAUX AVOCATS is at your disposal to help you implement negotiations within your company.

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Changing the place of work for SYNTEC employees

Are you covered by the SYNTEC agreement and want to change your employees’ place of work?

Special conditions apply to the mobility of your employees, as laid down by law, to which the Syntec agreement has added a number of specific features that are important to specify.

  • Changing the employee’s place of work

The Syntec Convention distinguishes between employees subject to a mobility clause and those who are not.

For employees whose employment contracts do not include a mobility clause, the collective bargaining agreement states that when the change of workplace occurs within the same geographical sector, it can take place without the employee’s agreement, even in the absence of a mobility clause.

On the other hand, if this change takes place outside this geographical area, it will constitute a change to the employment contract, requiring the employee’s agreement.

If the employee refuses the new workplace, you have a choice: either abandon the proposed change, or dismiss the employee.

The dismissal must be motivated by the reasons that led to the proposed change in the workplace, and under no circumstances may it be motivated by the employee’s refusal to accept it.

  • Please note: the Syntec Convention is very vague on the geographical area in which you can change the employee’s place of work without his or her authorization. We recommend that you only use this possibility within a very restricted geographical area, otherwise the change could be qualified as a modification of your employee’s employment contract, and would require his or her agreement. To avoid any difficulties, the best solution is to include a mobility clause in your employees’ employment contracts.

If a mobility clause is included in the employee’s employment contract, then changing the employee’s place of work never constitutes a change to his or her employment contract, provided the clause complies with the legal conditions for its validity and is implemented in good faith.

In this case, the employee’s refusal may be grounds for dismissal.

To be valid, a mobility clause must precisely define the geographical area to which it applies.

The greater the employee’s responsibilities, the more extensive the zone.

In order to be enforced, the mobility clause must also be implemented in good faith: it must meet an objective business need, for example to respond to a large supply of work in the employee’s new geographical area.

The Syntec Agreement also specifies that the mobility clause must be implemented with reasonable advance notice.

Even if the mobility clause and its implementation meet all of the above conditions, the employee may still refuse its application under the following conditions:

– If the transfer also modifies another essential element of his employment contract, in which case he will need to sign a supplementary agreement;

– If the transfer affects the employee’s personal and family life.

The implementation of a mobility clause can be a source of litigation, so we recommend that you seek assistance when setting up this mechanism.

  • On the reimbursement of expenses provided for in the Syntec Agreement in the event of a change of residence by employees

The Syntec Convention stipulates that when the modification of an employee’s employment contract results in a change of residence, the company must cover certain expenses: moving and travel costs incurred by the employee and his family.

The amount of these expenses will be subject to your prior agreement.

If the employee is informed of the change of residence too late to terminate the lease, he/she will also be required to pay the landlord the cost of reimbursing rent and charges, up to a maximum of three months’ rent. These costs will then be added to the removal costs mentioned above.

If the employee’s family is unable to move closer to his new place of assignment, the employee will be considered to be in a situation of displacement, and will be entitled to compensation for such displacement. This compensation must be paid for a maximum of one year.

The collective bargaining agreement also provides for the reimbursement of these moving expenses in the event of the employee’s dismissal, if he or she returns with his or her family to his or her original place of residence within 6 months of the dismissal, and provided the dismissal was not for serious misconduct. This reimbursement may be applied under the same conditions, with the employer’s agreement, if the employee decides to move to a location other than his or her initial place of residence.

To benefit from this reimbursement, the employee must be dismissed within 2 years of the change in workplace.

This reimbursement will be made on presentation of supporting documents.

In addition to the conditions for implementing a mobility clause, which can give rise to difficulties with the employees concerned, the Syntec agreement lays down very specific provisions that you should be aware of before planning an employee transfer, as this can entail significant expenses for your company.

Naturally, DESRUMAUX AVOCATS is at your disposal to assist you in the event of a change in the workplace of one or more of your employees.

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Where and how should tasks be divided between joint managers of an SARL?

Prevention rather than cure: are you ready to define who does what to avoid conflicts?

In many SARLs, several people share the management of the company, without having defined the division of tasks in writing.

In many SARLs, there is a main managing partner, and one or more co-managing partners whose role is limited to supporting the main managing partner in specific areas, such as finance or accounting. Sometimes, in principle, all the partners are managing partners, but only one is really active.

The French Supreme Court (Cour de Cassation) has recently considered such a case. Two partners dismissed one of the managing partners on the grounds that he was not carrying out the accounting tasks required to manage the company, and that the division of tasks between the three managing partners required him to do so.

The managing director contested his dismissal, arguing that not only was he not the only person authorized to carry out the accounting tasks, but that the division of tasks alleged by his co-managers was not recorded anywhere.

This is the reasoning adopted by the Cour de cassation: in the case of joint management, if the articles of association and extra-statutory deeds are silent, one of the managers cannot be blamed for failing to perform an obligation incumbent on the company, when there was no legal or material obstacle preventing the other managers from acting.

In this situation, the manager dismissed without cause may be entitled to damages paid by the Company.

If there is more than one managing director, we strongly recommend that you check that the distribution of obligations is set out in the articles of association or in an extra-statutory deed, so that everyone knows the exact extent of their responsibilities.

We can help you review your articles of association or partnership agreement to personalize them and adapt them to your operational organization.

A word of advice: A successful business is built on solid foundations. Clarify the roles of each co-manager so that you can move forward serenely in managing your business with your partner(s).

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News: New rules for very small businesses’ professional elections

The CERFA model for the procès-verbal de carence has just been modified, and this change will be of great interest to companies with between 11 and 20 employees.

Previous regulations:

Until now, in these companies, it was sufficient to inform staff of the organization of professional elections.

If no employee put himself forward as a candidate within 30 days, the VSE could draw up a “procès-verbal de carence” (minutes of default) attesting to the absence of elections.

The CERFA template included a specific box for companies with fewer than 20 employees, stating that ” in accordance with the provisions of article L.2314-5 paragraph 5 of the Labor Code, no election has been organized “.

New regulations:

Following a ruling by the French Constitutional Council, the Ministry of Labor has revised its interpretation of the relevant legal provisions.

From now on, very small companies (TPE) are exempted from negotiating the pre-electoral protocol with the trade unions; in other words, they can draw up this agreement internally without going through external negotiations.

However, these companies are still required to organize professional elections.

If, at the end of the two rounds of voting, there is neither an elected representative nor a candidate, the company may draw up a “procès-verbal de carence”.

The French Ministry of Labor updated its website on September 29, confirming that if no employee has applied for election within 30 days of the employer informing the workforce of the forthcoming elections, the electoral process must continue.

The Ministry specifies that the procès-verbal de carence can only be drawn up if no one has stood as a candidate in either the first or second round.

Please note: any employee may stand for re-election within 6 months of the end of the last election. In other words, the PV de carence is only valid for 6 months.

The new regulations seem rather onerous for a company. We’ll be sure to let you know if the situation changes.

Naturally, DESRUMAUX AVOCATS will be happy to help you organize this important event for your company.

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Notice of unfitness: Crucial details for employers

Are you faced with an employee who has been absent for a long period of time and are worried that he or she may be declared unfit for work? Or perhaps one of your employees has already been declared unfit for work by the company doctor? The issue of unfitness for work is a delicate one, and the key often lies in the opinion drawn up by the occupational physician.

Here are some key points to remember:

  1. Terms of the Notice of Incapacity

Particular care needs to be taken when implementing the unfitness procedure, and in particular when drafting the opinion issued by the occupational physician.

Depending on the terms used by the doctor, you may or may not be exempted from your obligation to find a new job.

Legal provisions stipulate that an employee may be dismissed for unfitness in the following cases:

  • The employer is unable to offer the employee a job that meets the criteria set out in the French Labor Code ;
  • The employee refused to be reclassified in such a job;
  • The occupational physician’s opinion of unfitness expressly stated that “keeping the employee in a job would be seriously detrimental to his or her health, or that the employee’s state of health makes it impossible to reclassify him or her in a job”.

If the occupational physician indicates exactly these last points in the notice of unfitness, then the Cour de cassation considers that the employer is exempted from the obligation to look for an alternative position for the employee declared unfit. Instead, he can immediately initiate the procedure for dismissing the employee for unfitness.

In a ruling handed down last September, the French Supreme Court firmly reiterated that if the terms of this notice do not exactly reflect the terms of the legal provisions, the employer cannot validly consider himself exempt from this reclassification obligation.

In this situation, the doctor had indicated that ” any continuation of the employee’s employment with this company would be seriously detrimental to his health “.

As the doctor had not exactly reproduced the legal provisions, the employer was not relieved of his obligation to reclassify the employee, and should therefore have looked for a position to reclassify him.

The dismissal is therefore without real and serious cause and the employee must receive the compensation due for such a dismissal.

  1. Reclassification: An Imperative with Exceptions

⚠ Caution: The employer’s obligation to find a new job is a public policy obligation, which can only be derogated from by strictly applying the cases defined by law.

Employees declared unfit for work can only be dismissed as a last resort.

  1. A reminder about Abusive Refusal
  • Important: The Cour de cassation has issued another important ruling on incapacity, which should also be borne in mind.

An employee who has been declared unfit for work as a result of an industrial accident or occupational disease loses his or her specific benefits if he or she refuses, without valid reason, an outplacement position suited to his or her abilities. However, the employer’s mere attempt to reclassify the employee does not constitute abuse. The employee’s refusal must be clearly abusive for him to lose his rights.

To qualify as an abuse of this kind, the employee must refuse, without legitimate reason, a position that is suited to his or her abilities and comparable to the job he or she previously held, and that complies with the occupational physician’s recommendations.

Dismissal on grounds of unfitness is a delicate procedure, fraught with pitfalls.

DESRUMAUX AVOCATS is at your disposal to support and advise you in such proceedings.

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Practical information: collective redundancies for 2 to 9 employees

Your company is experiencing significant economic difficulties, to the extent that you need to consider laying off between 2 and 9 employees for economic reasons.

Here are the 10 most important steps to follow.

Step1: determining the order of redundancies according to legal or contractual criteria.

Please note: this is a mandatory step. If it is not complied with, you may be fined and ordered to pay damages to the dismissed employee.

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Stage 2: the duty to adapt and reclassify

Prior to any redundancies, the employer must implement all measures to avoid layoffs.

We therefore need to adapt employees to their jobs as much as possible, to enable them to be redeployed to other positions.

Initially, the employee should be offered positions in the same category. If no such position is available, the search should be extended to other jobs, including those that the employee could do after training to adapt to the job. This training must be of short duration.

This obligation applies to all companies, regardless of their size, and to all redundancies, regardless of the number of employees made redundant.

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Stage 3: mandatory consultation of the Social and Economic Committee (CSE)

In companies with at least 11 employees, the Social and Economic Committee (CSE) must be convened and consulted in the event of collective redundancies involving 2 to 9 employees.

The Social and Economic Committee must be provided with a certain amount of information concerning the proposed mass redundancies.

Legal provisions stipulate only one meeting of the CSE. In practice, two meetings are generally held within the company: the first to inform the employee representatives of the redundancy project, and the second to answer any questions and consult the CSE.

It must give its opinion within one month of the first meeting at which it is consulted, failing which it will be deemed to have been consulted.

Please note: in companies without a CSE, a procès-verbal de carence is required, otherwise the redundancy will be irregular.

The employees concerned would then be entitled, in addition to severance pay and compensation in lieu of notice, to specific compensation equal to at least one month’s gross salary.

In these companies, collective redundancies will follow the same procedure as for individual redundancies.

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Step 4: Transmission of the minutes of the meeting with the CSE to the regional directorate for the economy, employment, labor and solidarity in your area.

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Step 5: Invitation to a preliminary interview

The letter convening the employee to a preliminary interview must be sent to the employee by registered letter with acknowledgement of receipt, or by hand-delivered letter with acknowledgement of receipt. It must contain the obligatory information required for this type of letter.

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Step 6: The preliminary interview

The preliminary interview may not take place less than 5 working days after presentation of the letter convening the preliminary interview.

During this interview, the employee should be informed of the reasons for the decision, and given the documents relating to the contrat de sécurisation professionnel. The employee should also be reminded of the possibility of contacting services, in particular the public employment service, which can help him or her make a decision in full knowledge of his or her rights.

Reminder: the employee has 21 calendar days in which to accept or reject the contrat de sécurisation professionnel.

This cooling-off period begins the day after the employer hands over the CSP information document.

This period must be respected in its entirety, even if the employee accepts or refuses the proposal during this period.

The dismissal cannot take effect before the end of this cooling-off period.

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Step 7: Notification of redundancy for economic reasons

The letter of notification of redundancy for economic reasons may be sent to the employee before the end of the cooling-off period.

It should then remind the employee of the date on which the cooling-off period expires, and explain that if he refuses, this letter will serve notice of his dismissal.

Please note: in the case of small-scale collective redundancies, the redundancy letter can only be sent to the employee after 7 working days.

This letter must include, among other compulsory details, a statement that the employee has priority of re-employment for a period of one year from the date of termination of the employment contract, and the conditions for implementing this priority.

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Step 8: Notification of dismissal to the authorities

The DREETS must be notified of the redundancy within 8 days of the redundancy letter being sent to the employee. This notification is made via an appropriate website.

Important: if one of the proposed dismissals concerns a protected employee, you will also need to obtain authorization from the labor inspectorate for this dismissal.

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Step 9: Notice of termination

The employee may be exempted from the notice period, which may also be waived if he or she has accepted a contrat de sécurisation professionnelle.

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10th and final stage: termination of the employment contract

The employee receives compensation for the termination of his or her employment contract.

You’ll also need to hand over your end-of-contract documents.

This type of dismissal is a delicate procedure to implement within a company, and is subject to a number of imperative formalities.

CABINET DESRUMAUX AVOCATS is at your disposal to help you implement these procedures.

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Night work in the Syntec agreement

Is your company subject to the provisions of the Syntec agreement and do you want your employees to work nights?

Here are a few tips to help you get the most out of this special working arrangement, in compliance with legal and collective bargaining provisions.

What is a night worker?

Under the French Labor Code, any work performed over a period of at least nine consecutive hours, including the period between midnight and 5 a.m., is considered night work.

The night shift begins at 9 p.m. at the earliest and ends at 7 a.m. at the latest.

To qualify as a night worker under the legal provisions, the worker concerned must :

  • At least twice a week, according to his usual work schedule, at least three hours of night work per day;
  • Or complete a minimum number of hours of night work during a reference period.

⚠ Please note: the French Labor Code stipulates that night work remains an exceptional working arrangement.

To be able to use it, two cumulative conditions must be met:

  • Night work must be justified by the need to ensure the continuity of economic activity or socially useful services;
  • Imperatives to protect the health and safety of workers must be taken into account.

⚠ Please note: if night work, even on an occasional basis, is incompatible with the employee’s family obligations, the employee may refuse to work in this way, without this refusal constituting misconduct or grounds for dismissal.

How does the Syntec agreement cover night work?

The Syntec collective bargaining agreement contains special provisions for ETAM employees who work regular night shifts.

These employees are entitled to a 25% increase on the hourly rate resulting from the hierarchical minimum wage, provided that these hours are included in a work period of at least 6 consecutive hours.

Employees who are not ETAMs will benefit from the legal provisions that provide a minimum of time off for employees working night shifts.

There are no special legal or contractual provisions for employees who work occasional night shifts, but it is advisable to give them at least some time off in return.

  • Important: in order to introduce night work in your company, you will need to sign a company-wide agreement, or seek approval from the labor inspectorate.

In fact, night work can only be introduced in companies by means of an extended branch agreement or company or establishment agreement.

Apart from the elements mentioned above, the Syntec Convention has no extended branch agreement governing night work.

If you want your employees to work at night, you’ll need to adopt a company-wide agreement governing the practice of night work in your company or establishment.

In the absence of such an agreement, authorization must be sought from the labor inspectorate.

This request must be justified and accompanied by a document attesting to the prior information given to employees.

The labor inspector will announce his decision within 30 days of receipt of the request.

What are the maximum working hours for night workers?

The French Labor Code stipulates that a night worker’s daily working time may not exceed eight hours, and weekly working time may not exceed forty hours over twelve consecutive weeks.

Under certain conditions, a company agreement or authorization from the labor inspectorate allows these maximum working hours to be exceeded.

Important: night-shift workers must also undergo special monitoring by the occupational health department because of the special working conditions.

Night work is a special issue in labor law, and its implementation must be carefully monitored.

DESRUMAUX AVOCATS is at your disposal if you would like to set up this system in your company.

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10 sacred weeks: protecting young dads at work

The law offers special protection to employees during a crucial period in their lives: the 10 weeks following the birth of their child. Breaking the contract during this period is strictly regulated.

🔑 A key point to remember: except in cases of serious misconduct or for reasons totally unrelated to the birth of the child, dismissal is prohibited.

Any dismissal of an employee in breach of these rules will be considered null and void, and may give rise to the payment of damages to the employee amounting to 6 months’ salary.

For the first time, in September 2023, the French Supreme Court (Cour de cassation) highlighted this protection.

In this situation, a sales manager, dismissed two weeks after the birth of his child, had his dismissal annulled because the reasons put forward by his employer were not sufficiently solid during this protected period.

Young fathers therefore enjoy the same protection against dismissal as young mothers within 10 weeks of the birth of the child, and dismissal of the latter must be justified by the impossibility of keeping him in his job.

The case law applicable to pregnant women can therefore be applied in a similar way to young fathers.

💡 Good to know: whether for a father or a mother, these 10 weeks post-birth are sacrosanct. If there are grounds for concern, it is imperative to wait until the end of this period before taking any action.

The employee is therefore protected during this period.

Thus, economic reasons for dismissal, the end of a project, physical unfitness and the impossibility of redeployment, as well as professional incompetence, will not constitute grounds for dismissal during this period. This impossibility of retaining the employee in his post must therefore be based on circumstances totally independent of the employee.

However, it would have been perfectly possible to dismiss him on the same grounds at the end of this period.

We recommend that you be particularly vigilant with your employees who are young parents, and more generally in all situations linked to maternity, paternity or any situation that could open the door to accusations of discrimination.

When faced with such delicate situations, expert advice is essential. Naturally, DESRUMAUX AVOCATS is at your disposal to help you manage these complex cases.