Disciplinary procedures are strictly regulated under French employment law. However, when an employer issues an official written warning to an employee because he has committed an act of misconduct, the employer can, in principle, be less formal. Unless the Collective Bargaining Agreement applicable to the company sets out any specific obligation, it is sufficient for the employer to send a letter setting out the misconduct committed by the employee and mentioning that if such misconduct were to continue, or be repeated, then a more severe sanction could be imposed.
However, in a recent case before the Court of Appeal (judgment given 22nd September 2021), an employee argued that his dismissal should have been carried out following the more formal procedure, claiming that the two written warnings he received should have been preceded by a preliminary meeting.
In its decision, the Court of Appeal, referring to article L1332-2 of the French Employment Code, confirmed that in principle the employer is not obliged to invite the employee to a preliminary meeting if the sanction is only a written warning. However, in this specific case, the applicable Collective Bargaining Agreement provided that an employer must have issued at least two written warnings (or other types of sanction) to the employee prior to any dismissal. Therefore the Court of Appeal considered that, as the two written warnings form an integral part of a disciplinary procedure leading to an eventual dismissal under the Collective Bargaining Agreement, then the formal procedure should have been followed and a preliminary meeting should have been held.
Although this interpretation seems likely to be disputed, our advice is that employers should systematically hold a preliminary meeting with the employee prior to issuing a written warning (or imposing any other type of sanction) if the applicable Collective Bargaining Agreement provides that a dismissal for misconduct must be preceded by a certain number of sanctions.
