France (EN) 
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Cour de cassation, Chambre sociale, 6 mai 2026, n° 25-12.673
In this case, an employee hired as Director of Operations was dismissed. He brought claims before the labour court relating to the performance and termination of his employment contract. The Court of Appeal declared the dismissal without real and serious cause and ordered the employer to pay the employee, in addition to damages for dismissal without real and serious cause, an indemnity for irregular dismissal procedure.
The French supreme court partially overturned the appeal decision insofar as it allowed the combination of compensation for dismissal without real and serious cause and compensation for procedural irregularities. It held that it follows from Article L. 1235-2, paragraph 4, of the Labour Code, as amended by Ordinance No. 2017-1718 of 20 December 2017, and from Articles L. 1235-3, last paragraph, and L. 1235-5, as amended by Ordinance No. 2017-1387 of 22 September 2017, that the indemnity for irregular dismissal procedure cannot be combined with the indemnity awarded for dismissal without real and serious cause, regardless of the employee’s length of service or the size of the company.
In this case, having declared the dismissal without real and serious cause, the Court of Appeal could not additionally order the employer to pay an indemnity for procedural irregularity. The rule allowing employees with less than two years of service and/or those hired by a company with fewer than 11 employees to receive both benefits simultaneously is therefore no longer applicable since the aforementioned ordinances took effect.
In a logical and predictable manner, the French supreme court overturned the decision without remand and rejected the claim for an indemnity for failure to observe the dismissal procedure. The French supreme court further notes that this argument (defense on the merits) may be raised for the first time at the supreme court level, insofar as it is a purely legal argument.
