Actance Tribune
What's NEW under French Employment Law?
N° 37 – April, 2025
Pay attention to meeting deadlines when sending the notice of the preliminary interview
The employer who plans to dismiss an employee must summon them to a preliminary interview.
Article L. 1232-2 of the labor code stipulates that this interview cannot take place less than 5 working days after the presentation of the registered letter or the hand delivery of the notice of summons. However, when the 5-day period expires on a Saturday, Sunday, or a public holiday, it is extended to the next working day (c.trav., art.R. 1231-1).
Failure to comply with this deadline makes the procedure irregular and entitles the employee to a compensation of up to one month’s salary.
Two recent cases have illustrated the strict interpretation that the Court of Cassation makes of these provisions.
(i) The responsibility of postal services in the late delivery of the letter of invitation to a preliminary interview does not constitute an exonerating cause for the employer
In a ruling on December 11, 2024 (No. 22-18362), the Court of Cassation deemed a dismissal procedure irregular due to the non-compliance with the legal 5-day period, even though this irregularity was not attributable to the employer.
Indeed, in this case, the failure of the postal services resulted in the employee receiving the invitation after the date set for the preliminary interview. Although the Post had presented the letter at least 5 days before the preliminary interview, it had not left a notice of passage, so the employee was not aware of the date of the preliminary interview.
The Court of Appeal had nevertheless validated the procedure and dismissed the employee’s claim for compensation for the irregular procedure after noting that the employer had complied with the legal deadlines and that the failure was attributable to the Post Office.
The Court of Cassation censures the judges’ decision: the mere finding that the employee had not been notified of the date of the preliminary interview within the time limit set by the labor code was sufficient to render the dismissal procedure irregular.
Practical advice: when a summons is sent only by registered letter with acknowledgment of receipt, it is essential to verify, before the date set for the interview, that the registered letter has indeed been presented by the Postal services. In case of doubt or if the failure of the Postal services is proven, it is imperative to resummon the employee.
It is recommended to double the sending by registered letter with a simple letter or an email with a request for confirmation of receipt.
(ii) The 5-day period refers to full days
In this second case, which resulted in a Court of Cassation ruling on March 12, 2025 (No. 23-12.766), the employer did not take into account the accumulation of public holidays and Sundays. Indeed, the invitation letter was presented on Friday, December 22, for an interview scheduled for the following December 29: considering the public holidays and non-working days, the employee actually only had 4 full days to prepare their defense, the 5th day falling on the day of the interview. The Court of Appeal reminds that the employee must have 5 « full » days so that the period cannot end on the day set for the interview.
Schedule set by the employer:
Practical advice: the employer must anticipate not only public holidays but also the date on which the 5-day period ends from the expected date of the first presentation of the summons letter. It is recommended to allow a minimum margin.
The production of anonymized certificates to prove wrongful behavior is possible, under condition.
In order to prove the wrongful behavior of an employee or challenge the practices of an employer, it is increasingly common to submit anonymized testimonies in debates.
Indeed, anonymity is often the condition for obtaining testimonies from people concerned about not suffering reprisals, whether from a colleague or the employer.
The Court of Cassation has admitted that the judge may base their decision on anonymized testimonies under the dual condition that (i) the identity of the author of the testimony is known to the party producing the testimony (ii) that this testimony is corroborated by other elements likely to support its credibility and relevance;
The Court of Cassation thus admitted:
- that a Works Council could justify the use of an investigation procedure for serious risk by producing anonymized statements (Cass. soc. December 11, 2024, no. 23-15154)
- that an employer could prove the reality of the fault attributed to an employee insofar as the statement was corroborated by other elements (Cass. soc. April 19, 2023, no. 21-20308 FB).
By a decision of March 19, 2025 (Cass. soc. March 19, 2025, no. 23-19154), the Court of Cassation seems to go further: the Court indeed admits the admissibility in court of anonymous testimonies even though they are not corroborated by other evidence.
The Court of Cassation indeed rules that in the absence of elements likely to support the content of the testimony, the right to evidence may justify the production of elements that infringe on the principle of a fair trial, provided that this production is essential to its exercise and that the infringement is strictly proportionate to the pursued aim.
Noting the real risks of retaliation faced by the employees who had testified and considering the employer’s obligation to ensure safety and protect the health of workers, the Court of Cassation deems admissible the anonymized evidence, although not corroborated by other evidence.
In a ruling dated March 12, 2025 (Cass. soc., March 12, 2025, no. 23-18.111), the Court of Cassation nevertheless reminds that an investigation report based on unsigned hearing reports, annexed to the report, cannot serve as a basis for dismissal. Indeed, the Court of Cassation notes that none of the submitted elements allowed for verifying the identity of the individuals who had testified.
In conclusion, while the employer can ensure the anonymization of testimonies, particularly to prevent any risk of retaliation, they must nevertheless ensure to keep a non-anonymized version to provide to the judge in case of litigation.