HIRING AND FIRING AN EMPLOYEE IN FRANCE. Even if it s easier to hire an employee than to fire one, some precautions are necessary in bith cases.

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1 HIRING AND FIRING AN EMPLOYEE IN FRANCE Even if it s easier to hire an employee than to fire one, some precautions are necessary in bith cases. A. HIRING AN EMPLOYEE In all the European union (EEC), an employer is free to hire the most sutable employee for the job as long as nobody is rejected because of their origin, sex, sexual preferences, family situation, pregnancy, race, political opinions For example a pregnant woman doesn t have to reveal her pregnancy. So you should only ask question which are relevant to their ability to do the job. Once you ve made your choice, it s necessary to sign a work contract. It s not a legal obligation but it s strongly recommended. Be careful, before hiring somebody you are obliged to declare this. 1. Hiring formalities You have to send a document called : Déclaration unique d embauche (DUE) to URSSAF (Government Department responsible for certain social charges). You have to do this at the earliest 8 days before the beginning of the contract. The employer has to mention his name, activity code, identification number, address and the following information about the employee : first and last name, nationality, date and place of birth as well as their national identification number if they are already registered with the social security. The date and time that the contract starts also have to be mentioned. In the five days following this declaration an acknowledgement of receipt is sent to the employer with one page which has to be given to the employee immediately. Even if a written contract isn t an obligation, the employer must give the employee a written document containing all the information you can find on the DUE. If you don t make the declaration, it s considered as irregular work and you risk 3 years in prison and a fine of ( if it s a company).

2 So a written contract is strongly recommended, especially because some collective bargaining agreements (CBA) provide for this and according to the European directive 91/533, the employee must be informed of all the essential elements of the work contract. That is to say : -identity of both parties, - place of work -a brief description of the job -the date the contract begins -the amount of paid holidays, -the notice required to end the contract -details of the salary and when it will be paid -the daily o weekly working hours, -the CBA which applies. Note that a written contract is indispensable to specify mobility, non competitive clauses and targets to be reached. A written contract also allows you to specify the trial period. 2. The trial period The trial period must be specified. The trial period can be between 2 and 4 months maximum depending on the job, it can also be shorter. The trial period can be renewed just once if it s specified in the contract and with the agreement of the employee. During the trial period either party may terminate the contract without any explanation and without following any particular procedure. However, you have to respect the notice period. The notice period varies according to the time spent in the work place. The notice period can be between 1 day and one month if the employer decides to terminate the contract. If it s the employee s decision the notice period will be one or two days.

3 B) WORK CONTRACTS There are two main types of contract. The permanent contract is the norm. Note that if there is no written contract, the contract will automatically be considered permanent. 1. The permanent contract What you put in your contract is very important. First of all you have to know which CBA applies. Indeed each profession has a specific CBA. It must be respected like the law. So before writing the contract the employer must be attentive to the law and to the CBA. Indeed the CBA can specify more favourable terms and conditions for the employee than the law. That is the case for the trial period, the salary. Be careful : everything written in the contract must be respected by both parties and can t be modified without the agreement of both parties. The employer can t change the salary, working hours and place of work or the classification of the employee, or the job itself. For example if the employer wants the employee to work in Marseille instead of the initial place of work in Nice, he should have included a mobility clause in the contract. If this is not the case he can t impose this modification on the employee, it s necessary to negotiate. If the employee refuses the proposed modification, the employer can either continue the initial contract or begin a firing procedure. Depending on the circumstances this procedure can be considered justified or not.

4 2. Temporary contract The temporary contract is the exception. It s only possible for : -doing a specific and temporary job in the cases within the scope of the law, -a contract signed within the framework of measures for employment *Specific and temporary job It can be used only : - to replace an absent employee, - to replace an employee who has left the company until the arrival of the replacement, - in the event of a temporary increase in business, - for seasonal employment, - or finally for specific activities (moving house, shows, surveys, recreational centers ), The other general case is when the recruitment is within the framework of the Employment Policy for example a contract envisaging a complement of professional training for the benefit of the employee (example: contract of qualification). Caution: in the 6 months following a lay-off, it is forbidden to make a temporary contract or to call upon a temporary worker in the case of a temporary increase in activity. The temporary contract must have a precise term. For the execution of a precise and temporary task, the maximum term, including renewal is fixed at 18 months. The term can be increased to 24 months in certain cases or in the event of a contract intended to ensure a complement of professional training. The temporary contract can be renewed only once. The contract can not have a precise term when it is established to replace an absent employee or while waiting for the arrival of an employee recruited under a permanent contract or for seasonal employment or specific jobs. Caution: if the contract does not stipulate in a precise way the reason why it is a temporary contract, it will be considered as a permanent contract. The contract ends automatically at the agreed expiry date.

5 At this date, the employee has the right to severance pay except for seasonal employment, specific jobs mentionned, or employment within the framework of a professional training. This pay is also not given when the employee refuses to accept a permanent contract for the same job or when if he accepts it. The amount of the severance pay is equal to 10% of gross salary due to the employee. Once trial period has been completed, the tempory contract can be brought to an end before the expiry term of the term only in the event of agreement by both the parts, gross misconduct, force majeure or if the employee has a permanent with another company. C) ENDING A CONTRACT What we are interested in today is how to fire an employee. We will not study the case of an employee resigning. I will simply state to that this resignation must be clear and unambiguous and in writing and cannot result from the employee s absence from the company. 1.Agreement for the end of the contract A work contract can be broken by mutual agreement between the employer and the employee. That is decided after several interviews. During this interviews the employee can be assisted by a person of his choice or an adviser. This mutual agreement stipulates the conditions of the ending of the contract notably : - the amount of the severance pay which cannot be lower than that of the legal financial compensation, - the expiry date which cannot intervene before the confirmation.

6 Both parties have a right of retraction which can be exercice by mail with acknowledgement of delivery during 15 days after the date of the signature of the agreement. At the end of this period, in the absence of retraction, the employer and/or the employee have to address a request for homologation of the agreement to the Departmental management of Work and Employment and Professional training (DDTEFP) which has a 15 day deadline to check the validity of the agreement (in particular the free assent of both parties). The absence of an answer within this period indicate time is worth implicit acceptance of convention. In the event of the refusal of the agreement, the DDTEFP must justify its decision. 2. The dismissal The employer s decision to end the permanent contract by laying off the employee must have a legitimate reason. The dismissal must follow a procedure which differs according to the nature of the dismissal and the number of employees concerned. The dismissal must be justified and explained in the letter of dismissal. For personal reasons The personal reason is a reason inherent in the person of the employee. It is not necessarily related to faulty behaviour. That can be personal shortcomings of the employee, the effects on the company of their repeated absences or extended sick leave. Only objective facts and facts that can be attributed to the employee can be reproached. The following are not considered objective facts: - presumptions likely to question the integrity of the employee, - disagreement with colleagues or the employer, - a family tie linking the employee with the member of a rival company.

7 The individual dismissal on personal grounds must be based on a genuine and substantive cause that is : -one which really exist, - is precise and verifiable, - is sufficiently important to justify the rupture of the employment relationship. The following situations cannot justify a dismissal: health problems or a handicap (except in the case of incapacity noted by the company doctor), state of pregnancy, maternity, adoption, industrial accident, the occupational illness, the participation in a licit strike, Any dismissal not based on a genuine and substantive cause is considered an abusive layoff. The employee concerned can go to Court. If he has at least 2 years service and if his company has at least 11 employees, the judge can propose his reintegration and maintain the acquired advantages. If he has less than 2 years service or if his company counts less than 11 employees, the judge can only grant financial compensation calculated according to the prejudice undergone. If the employer refuses to reinstate the employee, the judge can condemn him to pay a compensation at least equal to 6 months of wages. *The different types of wrongful acts Gross misconduct makes it impossible to keep the employee in the company. It s not necessary intentional. Gross negligence is something done by the employee with the intention to harm the employer or the company. It involves the loss of the financial claim for the employee. Theft is considered gross negligence. Indeed, theft is a serious act done intentionally.

8 The repeated refusal by an employee to carry out tasks concerned with his work contract is considered gross misconduct. The same behaviour accompanied by insults said in front of witnesses justifies a dismissal for gross negligence. The absence of an employee without a good reason justifies a dismissal. An employee who doesn t justify an absence of several days, can be fired for gross misconduct because this absence is likely to seriously disorganize the company. But gross misconduct cannot be retained when the employer has not at anytime ask the employee to return to work and more over waited several weeks before beginning the dismissal procedure. Physical violence justifies a dismissal for gross misconduct. Insults can also constitute gross misconduct. Insufficient results do not constitute a legitimate reason for dismissal if a clause concerning the result or a target was not inserted into the contract except if they were intentional. On the other hand the professional short comings can constitute legitimate grounds for dismissal but they are not considered gross misconduct. Economic grounds A dismissal on economic grounds results from the suppression or modification of the job because of economic problems or technological changes. Like any form of dismissal, it must be justified by a substantive cause. genuine and It s not possible to replace an employee dismissed on economic grounds shortly after the dismissal because it will be considered as abusive dismissal. In addition the company must be in real economic difficulties. The loss of a market, a decrease in sells or in turn over o profit are not sufficient. In addition to economic difficulties there may also be technological changes.

9 A change in the software if it implies the suppression of the task carried out an employee may justify his dismissal on economic grounds if it was not possible to find him an over job. Indeed this type of dismissal is only valid if it s not possible to find an over job for the employee. An employer has to try to find a similar job or one in the same category for the employee he wants to dismiss. The employee may accept a job in lower category if he agrees. It s one think to have grounds for dismissal, but you must respect the procedure for dismissal. 3. The procedure for dismissal *The procedure for dismissal on personal grounds There must be a preliminary interview to which the employee is summoned by a recorded delivery letter or a signed summons received directly. It s necessary to respect a delay of 5 days between the receipt of the summons and the interview. The summons must specify the reason for the interview, its date, time and place. It should also specify the possibility for the employee to be assisted by a person of his choice who can be a member of the company or an adviser chosen from a list at the town hall or the prefecture. During the interview, the employer must explain the grounds for dismissal and listen to the employee s explanations. In the event of a disciplinary grounds, the employer has two months after the facts that is salary is reproached to summon him to interview. The salary must receive notification of his dismissal at least 2 days after the interview. The employer must notify him by a registered letter which must specify clearly the grounds for dismissal. The notification of dismissal fixes the date of the end of the contract and the beginning of the notice period.

10 *Procedure for dismissal on economic grounds What is different in relation to dismissal on personal grounds is that during the interview the employer must inform the employee about the possibility of following a training course and give him any necessary documents for this. The employer can t notify the dismissal before a delay of 7 working days after the interview or 15 working days for an executive. The letter of dismissal must specify : -the economic reasons or technological changes responsible for the dismissal, -the possibility of having priority for any new job for a year from the end of the contract -and details concerning training course. In this case the employer must specify to the employee that he has 8 days from the receipt of the letter to accept or refuse this proposal. The procedures are different if the dismissal concerns between 2 and 9 employees or more than that. Antibes le 28 mai 2009 Maître Jérôme Zuccarelli Avocat 8 rue de France NICE Phone number : Fax number : zuccarelli-avocat@wanadoo.fr

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