OD FLASH |  The failure to inform an employee who has signed a professional safeguard agreement about the priority of re-employment only allows the employee who can prove damage to obtain damages, without any impact on the dismissal.

Court of Cassation, Social Division, February 26, 2025 – No. 23-15.427

In this case, during her pre-dismissal meeting, an employee was given a file relating to a professional safeguard agreement and an information document on the economic reasons for the proposed termination. On the day she joined the scheme, the employer sent her a registered letter informing her of the priority for re-employment she was entitled to under Article L. 1233-45 of the Labor Code.

The employee brought the case before the labor court, contesting the legitimacy of the termination of her employment contract. On appeal, her claims were upheld, and the dismissal was found to be without real and serious cause, due to the failure to inform the employee of her priority for reemployment before she accepted the professional security contract.

The employer lodged an appeal before the French Supreme Court. It considered that the failure to inform the employee who had signed a a professional safeguard agreement of her priority for re-employment did not deprive the termination of the employment contract of real and serious cause, but only allowed the employee who could prove that she had suffered damage to obtain damages. Therefore, by finding that the dismissal was not for real and serious reasons, the Court of Appeal violated Article L. 1233-16 of the Labor Code and Article 1231-1 of the Civil Code.

The Court of Cassation rejected the ruling of the Court of Appeal. Relying primarily on Articles L. 1233-45 and L. 1233-16 of the Labor Code, it points out that any employee dismissed for economic reasons has one year to request priority for reemployment, and that it is the employer’s responsibility to mention this priority and the reasons for dismissal in the termination letter. The Court added that when the termination of the employment contract results from the employee’s acceptance of a professional security contract, the employer must mention the priority for re-employment in the document setting out the economic reason for the termination, and this information must be communicated to the employee at the latest at the time of acceptance. It nevertheless considers that, in the absence of such a mention, the dismissal is not without real and serious cause, but that the employee can only obtain damages if he can prove that he has suffered harm.

It therefore considers that the Court of Appeal violated the above-mentioned texts by depriving the dismissal of real and serious cause, due to the failure to mention the priority for re-employment in the document given to the employee during her preliminary interview, before she accepted the professional safeguard agreement .

The Court of Cassation had already ruled that it was essential for the employer to provide the employee with a written document setting out the economic reason for the termination of their employment contract and their priority for re-employment, at the latest at the time of their acceptance of the CSP (Cass. Soc., Sept. 22, 2015, No. 14-16.218). However, it should be noted that this solution only applies if the failure to provide information concerns only the priority for re-employment. If the failure to provide information concerns the economic reason for the termination, the dismissal will then be deemed to be without real and serious cause (Cass. Soc., May 27, 2009, No. 08-43.137).