In the context of redundancies, French employers are subject to a strict reclassification obligation which requires them to try to seek alternative positions to be proposed to those employees whose dismissal is contemplated, prior to notification of the dismissal.
In addition to their own research at company and group level, it is common practice for employers (particularly in the context of mass redundancy schemes) to appoint outplacement agencies and to provide in the dismissal documentation that the designated agency will propose to those employees who are ultimately dismissed a fixed number of employment offers, during the period covered by their intervention.
What happens when the outplacement agency does not fulfil its obligations?
In a recent decision, an employer concluded an agreement providing that an outplacement agency would propose at least three employment offers for each employee affected by the redundancy procedure prior to dismissal. An employee who had been dismissed without being offered sufficient employment offers by the outplacement agency, filed a claim for unfair dismissal.
The Court of Appeals held that the failure by the outplacement agency to comply with its obligation did not affect the validity of the dismissal. However, this decision was reversed by the Supreme Court, which held that the employer’s commitment, made through the appointment of an outplacement agency, extended the scope of the statutory reclassification obligation. Consequently, failure by the outplacement agency to propose sufficient employment offers had a direct impact on the validity of the employee’s dismissal, which was held to be unfair.
This ruling serves as a reminder that it is ultimately the employer who is responsible for any breach relating to any obligation relating to redundancy procedures, despite the intervention of a third party (in this case, the outplacement agency).
Employers should then be cautious regarding the consequences of any undertaking made in the context of a redundancy procedure, which cannot be avoided with the intervention of a third party.