French employment law entitles employers to provide for a trial period in the employment contract during which the employer assesses the ability of the employee to perform his/her duties. In this context and during such period, if the employer determines that the employee is unable to perform his/her job, the employer is entitled to terminate the employment contract without being required to provide a substantive reason for such termination or to adhere to the formal termination procedure required for the termination of an indefinite term employment contract.
However, while such an opportunity is permitted at the commencement of the employment period, case law prohibits the stipulation of such clauses which take effect after such trial period has run. . Therefore, an employer would not be entitled to terminate an employee without proper justification and without complying with the normal termination procedure even where an employee has assumed new duties (for example after having been promoted) and his/her performance of such duties are not judged to be satisfactory. In such a case, the employer is only entitled to return the employee to his/her former position.
Against this background, what happens when an employer terminates an employee during an adaptation period for a new position after the employee’s former post has been suppressed?
In a recent ruling dated 7th July 2015, an employee was offered a reclassification position due to the suppression of his post. The new position was subject to a 2 months’ adaptation period so as to ensure that this position was compatible with his skills and experience. After having accepted such offer and formalising it by an amendment to his employment contract, the employee was subsequently dismissed on the grounds of poor performance within such 2 months’ period. The employee then filed a claim before the employment tribunal for unfair dismissal.
The Court of Appeal rejected the employee’s claim on the basis that the adaptation period was only provided so that the employee could adjust himself to his new duties and therefore did not prevent the employer from invoking his poor performance in the new position as a grounds upon which to terminate his employment contract. However, the Supreme Court reversed this decision and held that although the parties are entitled in the course of the contract and upon a change in the employee’s duties, to provide for an adaptation period, the termination of such period can only result in the employee’s reinstatement in his previous position.
This decision is confirmation of the principle that, regardless of the wording stipulated by the parties, the termination of an adaptation period provided upon the employee’s change in duties can only result in the employee’s reinstatement in his/her previous duties.
In this case, the initial position had been suppressed and it was therefore not possible for the employer to reinstate the employee in such position. Nevertheless, the subsequent dismissal was held to be unfair. It is therefore recommended that the employer seek alternative posts to be proposed to the employee in such situation in order to avoid a dismissal measure.