OD FLASH | An employer’s negotiations to hire a potential replacement for an employee they are considering dismissing do not, in themselves, invalidate the legitimacy of the dismissal or render it without genuine and serious cause.

Supreme Court, Civil Division, Social Chamber, May 6, 2025, No. 23-17.668

Pursuant to Article L. 1232-6 of the French Labour Code, the termination of an employment contract, in the absence of a dismissal letter, can only result from an act by the employer through which they express to the employee or publicly their intention to end the employment contract.

In this case, an employee serving as Production Manager was dismissed for misconduct. He contested the dismissal before the Labour Court, arguing that the dismissal lacked genuine and serious cause.

In support of his claim, the employee asserted that the employer had decided to dismiss him even before the pre-dismissal meeting took place, having learned of recruitment negotiations with a candidate for his position. To substantiate his claim, the employee argued that the employer had already made the decision to terminate his employment, as evidenced by discussions initiated with a candidate to fill his role.

The Reims Court of Appeal, in a ruling dated March 29, 2023 (No. 21/02276), rejected the employee’s claims, ruling that the dismissal was justified.

The employee then filed an appeal before the Supreme Court against the decision of the Reims Court of Appeal.

The Supreme Court rejected the appeal. It reiterated that, pursuant to Article L. 1232-6 of the French Labour Code, the decision to dismiss an employee, in the absence of a dismissal letter, can only arise from an act by the employer clearly expressing to the employee or publicly their intention to terminate the contract.

Applying this principle, the Supreme Court ruled that hiring negotiations initiated with a third party cannot, in and of themselves, be interpreted as the employer’s expression of an intent to terminate the contractual relationship. Therefore, no de facto dismissal prior to the pre-dismissal meeting was established.

This decision aligns with established case law from the Supreme Court, which recently ruled on a similar matter (Supreme Court, March 26, 2025, No. 23-23.625: email exchanges not addressed to the employee may constitute admissible evidence, but they alone cannot establish an irrevocable decision by the employer to terminate the contract).