How are employees chosen during an economic dismissal?

Verified 06 July 2023 - Legal and Administrative Information Directorate (Prime Minister), Ministry of Labor

Where the employer intends to dismiss one or more employees for an economic motive, it must take account of criteria to set the order of the economic redundancies.

What criteria are taken into account to determine this order? Should the employer inform the dismissed employee of the criteria used? Can the employer be penalized if he does not meet the criteria?

We're doing an update on the regulations.

Regardless of the number of economic dismissals envisaged, the employer must comply with the rules on the order of dismissals when making a choice among employees.

Indeed, it is necessary to determine which employee will be dismissed among all those in the occupational category concerned.

Please note

Employers are exempted from laying down criteria for dismissals only where they have no choice among the employees to be dismissed. This is the case, in particular, when the company is completely and permanently shut down or when all jobs in the same occupational category are eliminated.

Order criteria are implemented by occupational category applying the criteria to all employees belonging to the same category and by geographical area.

In principle, this zone is applicable at company level, but a collective agreement or the employer may set another scope.

In the latter case, this perimeter may not be less than area of use in which one or more establishments of the company concerned by the redundancies are located.

The criteria to be taken into account vary depending on whether agreement or collective agreement set criteria, or not.

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Criteria defined by agreement or collective agreement

If the criteria for determining the order of the redundancies are laid down by collective agreement or agreement applicable to the company, they are binding on the employer.

Criteria defined by the employer

In the absence of criteria laid down by the collective agreement or agreement, the employer shall be responsible for defining them, after consulting the Social and Economic Committee (ESC), if there is one.

The employer must then take into account all legal criteria following:

  • Employee's family expenses, in particular those of lone parents
  • Age of the employee in the establishment or company
  • Any situation which makes reintegration into employment especially difficult, in particular for older or disabled employees
  • Professional qualities valued by category.

Other criteria may be added to this list.

Warning  

The employer cannot lay off workers based on discriminatory criteria. It is not possible to dismiss an employee solely because he works in part-time.

The employer may give preference to one of the criteria, provided that all the other criteria laid down are taken into account.

He must take all these criteria into account, even if he makes an individual redundancy for economic reasons.

Yes, the dismissed employee may ask the employer for the criteria used to justify his appointment within a period of 10 days from the time he leaves the company.

The employee shall address a written request to the employer:

  • Either by hand delivered letter against dump
  • Either by registered letter with acknowledgement of receipt (LRAR)

The employer must reply to him, under the same conditions, within a period of 10 days upon delivery or presentation of the letter.

Failure to comply with the dismissal order criteria shall result in the employee being prejudiced and entitled to damages.

The employee can then enter the prud'homme council.

Non-compliance with the order criteria is also a infringement. It may be punished by the fine provided for contraventions of 4e class (€3,750 for a legal person,€750 for a natural person).

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  • For more information

    Departmental Directorate for Employment, Labor and Solidarity (DDETS or DDETS-PP)

    https://dreets.gouv.fr/

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