Economic redundancy which is null, unjustified or irregular

Verified 07 September 2023 - Directorate for Legal and Administrative Information (Prime Minister)

When a judge questions an economic dismissal, the consequences of his decision vary depending on whether the economic dismissal has been declared null, without any real and serious (unjustified) or irregular cause.

The judge may cancel dismissal where it is forbidden by law (e.g. dismissal of an employee on maternity leave): in this case the dismissal is sucks.

The judge may decide that the reason for dismissal is invalid, in this case, the dismissal shall be without real and serious cause. We are also talking about unfair dismissal or unjustified.

When the procedure dismissal has not been respected (e.g. absence of prior interview), the judge may decide that the dismissal is irregular.

Null

Economic redundancy is loose where the judge annuls the dismissal.

Dismissal economic may be canceled in the following situations:

  • Invalidity of the redundancy linked to the employment protection plan (PSE)
  • Other general grounds for nullity of dismissal (e.g. discrimination, violation of a fundamental freedom)

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Invalidity of the redundancy linked to the PSE

The dismissal of the employee may be canceled in the following cases:

  • No decision to validate the majority agreement or to approve the PES by the Dreets: titleContent
  • Refusal of the Dreets: titleContent to validate the majority agreement or to approve the PES
  • Annulment by the judge of the decision of validation or approval on the grounds of absence or insufficiency of the PSE

Please note

In case of recovery or judicial liquidation, the dismissal cannot be canceled.

Other grounds for annulment of the economic dismissal

Cases of nullity provided for by law are, for example, dismissals in any of the following situations:

  • Due to a discrimination
  • In violation of a fundamental freedom (freedom of expression, freedom of association, religious freedom, right of withdrawal of the employee)
  • In connection with the performance of the duties of juror or citizen assessor
  • Refusal of a geographical transfer to a State criminalizing homosexuality on grounds of sexual orientation
  • For having recounted or testified, in good faith, facts constituting a offense or a crime of which the employee would have been aware in the course of his duties
  • Against an employee whistleblower
  • Because of a legal action on gender equality
  • Against victims or witnesses of harassment moral or sexual (except in bad faith of the employee)
  • Failure to comply with maternity or paternity protection
  • Accident at work In case of non-compliance with the protection related to the
  • In case of non-compliance with the protection granted to certain employees (member of the ESC: titleContent for example)
  • Infringement of the right to strike
  • Against an employee who has testified (or reported) to ill-treatment or deprivation of a person accommodated in social and medico-social institutions or services
  • In case of non-compliance with the protection related to the death of the child under 25 years
  • Failure to comply with the protection related to the death of an actual and permanent dependent under 25 years of age

Yeah. Yeah. The employee may request his reinstatement in the company.

The employer may, however refuse reinstatement if it has become impossible (e.g. closure of the establishment or site or lack of available employment).

Where the judge annul the PSE for failure to state adequate reasons for the administrative decision to validate or approve it, the employee may not be reinstated.

Warning  

The reinstated employee must repay the sums received on dismissal.

An employee who is not reinstated in the company may, in some cases, receive compensation.

Its amount is determined by the judge and varies according to the reason for canceling the dismissal:

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No decision to validate or approve or refuse the Dreets

The conditions for payment of compensation vary according to the number of employees in the company and the length of service of the employee:

Company of less than 11 employees

The employer may be ordered to pay damages to the employee on the basis of the damage suffered.

Company of 11 or more employees
The employee has less than 2 years' service

The employer may be ordered to pay damages to the employee according to the damage suffered.

The employee has at least 2 years of service

An allowance of one minimum amount of 6 months salary, without a ceiling, shall be paid to the employee.

Failure to state reasons or insufficient statement of reasons for Dreets’ decision on the PES

After the notification from the judgment annulling the validation or approval of the PSE to the Dreets: titleContent, the latter takes a new decision sufficiently substantiated within 15 days.

The employer shall inform the dismissed employee of this decision.

The employee does not receive of compensation from the employer.

Other grounds for cancelation

An employee who is not reinstated in the company shall be entitled to a minimum allowance of 6 months' pay, unconditional seniority.

This allowance is in addition to statutory severance pay.

Unjustified

Dismissal on economic grounds is unjustified (or without a real and serious cause) where the economic reason for the dismissal is invalidated by the judge. We are also talking about layoffs abusive.

Yeah. Yeah. The employee may be reinstated in the company if 2 conditions the following are respected:

  • Proposal for reinstatement by judge
  • Agreement of the employer and the employee for this reintegration

The reinstated employee retains the maintenance of his acquired benefits (e.g. salary, seniority).

Yeah. Yeah. If the employee is not reinstated, the judge shall award the employee compensation for dismissal without real and serious cause. This allowance is paid by the employer.

The amount of the allowance varies according to the size of the company and the length of service of the employee at the date of the dismissal. The judge determines the amount.

A simulator is used to indicate the minimum and maximum amounts of compensation for wrongful dismissal:

Estimate the amount of compensation for wrongful dismissal

This allowance may be combined with thestatutory severance pay.

Warning  

Compensation due under a economic redundancy and compensation for wrongful dismissal accumulate in the maximum amount limit provided for in the scale.

Irregular

Dismissal on economic grounds may be recognized irregular by the judge when the dismissal procedure has not been followed (for example, in the absence of prior interview).

However, that failure is not sufficient to annul the dismissal. Dismissal may be irregular, but have a real and serious cause (i.e. be justified).

No, no, no. The law does not provide for the possibility of reinstating the employee in the event of a mere irregularity in the procedure for dismissal on economic grounds.

Yeah. Yeah. The judge grants the employee an allowance payable by the employer.

The amount of such compensation may not exceed 1 month salary.

This compensation does not overlap with the compensation for wrongful dismissal.

Warning  

If the unlawful dismissal is also found to have no real and serious cause, the employee shall only receive compensation for wrongful dismissal.

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