OD FLASH | Preliminary interview prior to dismissal for personal or to a disciplinary sanction : no right to remain silent according to the Constitutional Council

Decision No. 2025-1160/1161/1162 QPC of September 19, 2025

On June 20, 2025, the French Constitutional was simultaneously seized by the Court of Cassation and the Council of State regarding three priority questions of constitutionality (QPC). These questions specifically concerned the constitutionality of Articles L.1232-3 and L. 1332-2 of the Labor Code, relating to the conduct of the preliminary interview prior to dismissal for personal reasons or to a disciplinary sanction. Given the interrelatedness between the three cases, they were dealt with jointly by the Constitutional Council.

Since no provision of the Labor Code provides for the employee’s right to remain silent during the preliminary interview prior to dismissal for personal reasons or to a disciplinary sanction, it seemed clear to many employers, from a legal standpoint, that it was not necessary to notify the employee of their right to remain silent

As this right is enshrined in criminal and administrative law, the question arose as to whether it should also be enshrined in labor law, and more specifically during the preliminary interview prior to dismissal for personal reasons or to a disciplinary sanction .

The answer to this question was particularly important for employers, as there was still some doubt regarding the consequences of failing to notify the right to remain silent during the preliminary interview prior to dismissal for personal reasons or to a disciplinary sanction: simple procedural irregularity, dismissal without real and serious cause, or even nullity of the dismissal.

In these cases, the applicants argued that the failure to enshrine the right to silence in labor law violated Article 9 of the Declaration of the Rights of Man and of the Citizen (DDHC).

This article establishes the principle that no one is obliged to incriminate themselves, from which derives the right to remain silent.

The QPC concerned the question of whether the words “and obtain explanations from the employee” appearing in Article L.1232-3 of the Labor Code and in the penultimate paragraph of Article L.1332-2 of the same code were in conformity with the Constitution.

The Constitutional Council ruled that the requirements of Article 9 of the DDHC apply only to penalties or sanctions that are punitive in nature, which excludes measures taken in the context of a private law relationship, since they do not reflect the exercise of public authority.

Consequently, employers are not required to inform employees of their right to remain silent during preliminary interviews prior to dismissal for reasons personal or to a disciplinary sanction.