The legal background

French employment law strictly regulates the disciplinary power that an employer can exercise over its employees. In particular, one fundamental rule states that an employer cannot discipline an employee twice for the same fact. This means that if an employee has been disciplined for misconduct, a new sanction based on the same misconduct can be annulled unless new facts (related to the misconduct) are established.

It is therefore a sensitive matter to determine whether or not a given measure can be considered to constitute a sanction, thereby preventing the employer from implementing a different sanction based on the same facts.

The difficulty resides in the fact that French employment law adopts a very wide definition of what must be interpreted as a disciplinary sanction, since disciplinary sanctions are defined by law as being “any measures, other than verbal observations, taken by an employer in response to an act of an employee which the employer considers incorrect, whether or not such measure has an immediate effect upon the continued presence of the employee in the company, his/her duties, career or remuneration”.

In this context, does the fact that an employee is requested to provide an explanation of his or her behavior based on facts that the employer considers as incorrect constitute a disciplinary sanction?

The case

In a recent case dated 19th May 2015, after having been convened to a predismissal meeting by reason of several breaches of procedure, an employee received a request for explanations with regard to his behavior (in relation to the facts on the basis of which he was convened to the predismissal meeting). Such request was made on the basis of an internal regulation allowing the employer to collect in writing the employee’s explanations and to record such explanations in the employee’s file, it being specified that such regulation imposes on the employee an obligation to respond to such request and that any refusal to comply with this request could lead to a sanction. Subsequently, the employee was terminated for gross misconduct, following which he lodged a claim before the Labour court to challenge the justification of his dismissal on the ground that he had already been disciplined for his misconduct.

The Supreme Court overruled the decision of the Court of Appeal which considered that the request for explanations was a mere investigation measure and not a disciplinary sanction. The Supreme judges found that the context surrounding such measure led it to view such measure as a disciplinary sanction per se. In this respect, the Supreme Court noted that (i) the measure was taken in response to the employee’s wrongdoing, (ii) the employee was under the obligation to reply to it and alone, (iii) any refusal to abide by such request could constitute an additional reproach subject to a specific sanction and that (iv) the minutes registering the employee’s written responses were kept in the employee’s file. Against this background, the Supreme Court ruled that such measure had a disciplinary nature.

The decision and its meaning

This decision is a confirmation of previous case law which considered that a request for explanations may be viewed as a disciplinary sanction in certain cases. The consequences could be severe for the employer given that, if the measure requalified as a disciplinary sanction occurred prior to a dismissal based on the same fact, such dismissal would be deemed as unfair and the employee would be awarded damages for the unjustified loss of his/her employment.

Therefore, any employer wishing to obtain an employee’s explanations related to his/her supposed misconduct should be very careful when preparing such demand. It is therefore recommended to keep it to a simple request for clarifications without qualifying the facts in question as misconduct and with no sanctions applied in the absence of response. There also should be no recording of the employee’s responses in his/her employment file.

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