OD FLASH | The absence of mention of selection criteria on the list of available positions for redeployment constitutes a failure by the employer to fulfill their redeployment obligation, rendering the dismissals without real and serious cause

Supreme Court, Civil, Social Chamber, January 8, 2025, No. 22-24.724

In the case of an economic dismissal, the employer has an obligation to adapt and redeploy employees. Article L. 1233-4 of the French Labor Code, as amended by Ordinance 2017-1387 of September 22, 2017, stipulates that the employer may distribute a list of available positions for redeployment to all employees by any means.

Article D. 1233-2-1 of the French Labor Code specifies that the offers must be written and include various details, such as the job title and a description of the role.

Furthermore, this article provides that, for offers published as a collective list, the criteria for selection in case of multiple candidates for the same position, as well as the deadline by which the employee must submit their written application, must be included.

In a decision dated January 8, 2025, the Supreme Court ruled on the importance of mentioning the selection criteria in redeployment offers.

In this case, an employer failed to mention the criteria for selecting between employees in case of multiple applications for the same position on a collective list of redeployment offers. Employees argued that this omission was a failure by the employer to fulfill their redeployment obligation, thus rendering their dismissals without real and serious cause.

The employer argued that the omission of the selection criteria on these lists was merely a procedural irregularity, which was insufficient to invalidate the dismissal for lack of real and serious cause.

In a decision on October 26, 2022, the Reims Court of Appeal found an absence of a fair internal redeployment search, which deprived the dismissal of real and serious cause.

The employer then appealed to the Supreme Court.

The Supreme Court rejected the employer’s arguments and upheld the decision. It ruled, without specifically referring to the fairness of the redeployment search, that “In the absence of this mention, the offer is imprecise because it does not provide the information necessary for employees to make an informed decision, which constitutes a failure by the employer to fulfill their redeployment obligation and renders the dismissal without real and serious cause.”

By this decision, the Supreme Court reiterates that, in accordance with the provisions of Article L.1233-4 of the French Labor Code, “redeployment offers made to employees must be written and precise.” The judges also made a literal application of the provisions of Article D.1233-2-1, which requires that the selection criteria in case of multiple applications be included in the list of redeployment offers.

Therefore, the failure to mention the selection criteria in case of multiple candidates constitutes a failure by the employer to fulfill their redeployment obligation, thus rendering any subsequent dismissals without real and serious cause.