OD FLASH | An employee whose trial period was terminated on discriminatory grounds is only entitled to compensation for the damage resulting from the termination, and not to the compensation provided for in the event of unfair dismissal or reinstatement.

French Supreme Court, Social Division, June 25, 2025, No. 23-17.999:

An employee was notified by her employer that her probationary period had come to an end. She brought a claim before the labor court for the nullity of the termination of her employment contract and her social security rights. On appeal, the termination of the trial period was found to be null and void, but the employer was only ordered to pay damages for wrongful termination, on the grounds that the termination could not be subject to the same penalties as in the case of dismissal.

The employee then appealed to the French Supreme Court.

She first argued that the termination of a trial period on discriminatory grounds was null and void. Since the decision to terminate her trial period was made shortly after she announced her serious illness, it constituted discrimination prohibited by the Labor Code. She therefore considered that the termination was null and void because it was discriminatory on the grounds of her state of health.

Secondly, the employee argued that, since the termination of her probationary period was discriminatory, it should be considered null and void, i.e., as if it had never existed. Consequently, the Court of Appeal could not simply award her $5,000 in damages but had to apply the legal consequences of this nullity, in particular the minimum compensation of six months’ salary applicable in the event of null dismissal or reinstatement in the company’s workforce (Article L. 1235-3-1 of the Labor Code).

Furthermore, the employee argued that all discrimination must be punished in an effective, proportionate, and dissuasive manner. However, by holding that the penalty for discriminatory dismissal, namely reinstatement or, failing that, damages at least equivalent to the last six months’ salary, could not be applied to the termination of the trial period, the Court of Appeal had equated this discriminatory termination with a simple wrongful termination. In doing so, it deprived the prohibition of discrimination of any real effect, in breach of the requirements of the Labor Code and the European Directive of November 27, 2000.

In summary, by refusing to order her reinstatement in the company on the grounds that the rules on dismissal did not apply to the trial period, the Court of Appeal had, according to the employee, violated the rules applicable to the fight against discrimination.

The French Supreme Court dismissed the employee’s appeal. It pointed out that, under Articles L. 1132-1 and L. 1132-4 of the Labor Code, any termination of an employment contract on the grounds of an employee’s state of health is null and void. Furthermore, Article L. 1231-1 of the same Code provides that the provisions relating to the termination of a fixed-term employment contract do not apply to the termination of a trial period. The High Court concluded that “an employee whose trial period has been terminated on discriminatory grounds is not entitled to the compensation provided for in the event of unfair dismissal but is entitled to compensation for the damage resulting from the invalidity of the termination.”

It further specified that the directive invoked by the employee concerns the fight against discrimination based on religion or belief, disability, age, or sexual orientation, and is therefore not applicable in cases of discrimination based on health status. The Court of Appeal therefore rightly concluded that the employee was entitled to damages for the harm suffered and determined the amount of such damages at its discretion.

This decision is in line with the case law of the French Supreme Court, which has already ruled that, in the event of the invalidity of the discriminatory termination of the trial period, the employee cannot claim compensation in lieu of notice (Cass. soc., Sept. 12, 2018, No. 16-26.333).