OD FLASH | Dismissal letter and dating of facts

Supreme Court, September 11, 2024 (no. 22-24.514)

The French Supreme Court has clarified what needs to be included in a dismissal letter, ruling whether it is necessary to include the date of the facts stated in the letter.

In this case, an employee was dismissed on January 13, 2013, for gross misconduct based on theft and embezzlement, and brought the matter before the French Labor Court to challenge his dismissal.

The French Lower Courts ruled the dismissal to be unfair and ordered the company to pay various indemnities to the employee. More specifically, the French Court of Appeal considered that the employer had not specified in the dismissal letter the discovery date of the alleged embezzlement from the employee, although it indicated that this happened during a meeting held in another company’s headquarters around December 20, 2012. Thus, the employee was entitled to claim that the employer was time-barred regarding the disputed facts.

In its appeal before the French Supreme Court, the company argued that the dismissal letter did not have to specify the date of the alleged facts, nor the date on which they were discovered. Consequently, the French Lower Courts should only have ascertained whether the employer had provided proof of this discovery within the statute of limitations, and if so, whether the facts in dispute were sufficient to justify a dismissal for gross misconduct or, at the very least, for justified ground for a fair dismissal.

The French Supreme Court was therefore requested to determine whether the mere fact that the dismissal letter did not specify the date of the misconduct on which the dismissal was based, or the date on which the employer discovered the misconduct, was sufficient to deprive the termination of justification and make it unfair.

The Court responded in the negative in the light of Art. L.1232-6 and 1332-4 of the French Labor Code.

Firstly, it stated that, while the dismissal letter must set out precise and factually substantiated grounds for dismissal, it is not necessary to date the facts stated in it. As such, the employer is entitled, in the event of a dispute, to invoke all the factual circumstances that justify these grounds. Thus, in this case, the French Low Courts should not have ruled in this way, given that they had noted that the dismissal letter, which was not required to specify the date of the alleged facts, set out precise and factually verifiable grounds. Secondly, the French Lower Courts should have verified whether the employer had provided proof of the discovery of these facts within the required timeframe, and whether these facts were substantiated and could justified the dismissal.

In the end, although this decision from the French Supreme Court is not a real breakthrough – as this principle was already stated in previous decisions (Supreme Court, March 7, 1995, no. 93-43.415 and 93-43.596; Jan. 5, 1995, no. 93-42.190) – it confirms its current stance and urges employers to be as thorough as possible in such situations, to avoid any potential disputes.