OD FLASH | Occupational transition contract: failure to inform the employee of the priority of re-employment does not deprive the dismissal of real and serious cause

Cass. Soc., February 26, 2025, no. 23-15.427

Failure to inform an employee of his right to priority reemployment following dismissal for economic reasons does not deprive the employee of real and serious cause and entitles him to compensation only if he can demonstrate the existence of prejudice.

As a reminder, the occupational transition contract (CSP) is a program enabling employees dismissed for economic reasons to:

• receive a specific benefit, paid by France Travail and higher than the traditional unemployment benefit;

• receive enhanced support from France Travail to help them find a new job.

When the employee accepts the occupational transition contract, the termination is deemed to be by mutual agreement, and is therefore not a dismissal (C. trav., art. L. 1233-67).

Also, the employee must be informed of the economic reason at the latest when he or she receives the occupational transition contract application form, otherwise his or her dismissal is devoid of real and serious cause (Cass. Soc., January 18, 2023, no. 21-19.349)

In addition, employees dismissed for economic reasons are entitled to priority re-employment for one year from the date of termination of the employment contract, provided they request it (C. trav., art. L. 1233-45). The French Labor Code adds that the employee must be informed of this priority in the letter of dismissal (C. trav., art. L. 1233-46), and that breach of the obligation to reemploy by the employer entitles the employee to compensation at least equal to one month’s salary (C. trav., art. L. 1235-13).

In the discussed decision (no. 23-15.427), the French Supreme Court rules on how the employer is to inform the employee accepting the CSP of this priority of re-employment.

In this case, an employee was summoned to a preliminary interview, at which time the employer gave her a file on the occupational transition contract and an information document on the economic reasons justifying her possible dismissal. The employee accepted the transition contract. On the day of her acceptance, the employer confirmed the termination of her employment contract and informed her of her right to priority re-employment.

The employee then argued before the judge that her dismissal for economic reasons should be devoid of real and serious cause, since she considered that she had not been informed in due time of this priority of re-employment – this information should have been given on the date of dismissal.

This reasoning convinced the Court of Appeal, which held that the mere fact that the employee had not been informed of her priority for re-employment before accepting the occupational transition contract deprived her dismissal for economic reasons of real and serious cause.

For the French Supreme Court, however, such reasoning had to be censured:

• the employee must be informed of the priority of re-employment no later than the moment he or she accepts the occupational transition contract, which was indeed the case here;

• even if the employee had not been informed of the priority of re-employment, this alone would not have been sufficient to deprive the dismissal of real and serious cause;

• in such case, the employee can only claim compensation for this lack of information if and only if he or she can prove that it caused him or her prejudice.