Just for once, we will talk about French lawyers. We say “for once”, because only a minority of lawyers in France are employees (a very large majority of us are self-employed).

From a French employment law point of view, although the employee in the particular case we will discuss here was a lawyer, that is actually completely irrelevant to the principle at stake, as the decision rendered by the French Supreme Court can be extended to any employee, regardless of their role.

Generally speaking, an employee’s poor performance may result in dismissal, and poor performance is widely used in France as a legitimate ground for termination of an employee’s contract. In the event of litigation, French courts will verify that certain conditions are met, particularly that the targets assigned to the employee were duly communicated to them (in the French language), and also that such targets were achievable.

In the present case, an employee was recruited as a lawyer by a law firm. In addition to her duties as a lawyer, she was entrusted with the management of a secondary office of her law firm. During the first three years of her employment, she was not subject to any criticism or reproach. At the beginning of the fourth year however, she was notified in writing that the turnover she achieved was significantly under budget, in particular due to late invoicing of her clients. She was dismissed for poor performance a few months thereafter.

The employee challenged her dismissal, arguing notably that the poor results used by her employer as justification for the termination of her employment contract were due not only to the fact that several employees of the secondary office she managed were often absent (and she had not been granted the ability to recruit additional staff), but also that she returned from maternity leave on the basis of a part time contract.

Both the Court of appeal and the French Supreme Court held that the employee’s dismissal was unfair as the poor performance could not be accountable to her. The underlying idea is consistent with the prior decisions of the Supreme Court: an employee cannot be dismissed for poor performance in cases where their employer has not provided them with sufficient material and human resources to perform their duties.

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