FRANCE Law and Practice Contributed by: Laetitia Tombarello and Audrey Demourgues, Bredin Prat
7.5 Protected Categories of Employee In France, some employees benefit from a specific protection against dismissal, including employee representatives (eg, trade union delegates and works council members), pregnant employees, employees on sick leave caused by a work accident or profes - sional illness, employees declared unfit for work ( inapte ) by the occupational doctor, etc. If the pro - visions relating to the protection of such employees are not followed, their dismissal will be deemed null and void. Employee Representatives Employee representatives benefit from a specific legal protection in connection with the performance and termination of their employment contract, including for six months after the end of their tenure (or 12 months for union delegates). Such protection also applies to employees who were candidates in the last employee representative elections but were not elected, and to employees who requested the organisation of such elections. Aside from dismissals, this protection prevents the company from imposing on these protected employ - ees any substantial change to their employment con - tracts or any change in their working conditions. In addition, to dismiss a protected employee, regardless of the reason, the company must consult the works council and request authorisation from the Labour Inspection, failing which any dismissal will be deemed null and void. 8. Disputes 8.1 Wrongful Dismissal A dismissal can be deemed wrongful for many rea - sons. Most reasons relate to: • the unjustified nature of the dismissal, whether based on personal or economic grounds, in which case the dismissal will be deemed unfair or without “real and serious reason”; or • the discriminatory nature of the dismissal, or the violation of regulations relating to protected employees, or the cancellation of a social plan, in
which case the dismissal will be deemed “null and void”. These different grounds for wrongful dismissal have different consequences. Unfair Dismissal Indemnity In the event of a dismissal without “real and serious reason”, employees are entitled to an indemnity for unfair dismissal, which is fixed by the court within a minimum and maximum amount set by a scale (also called the Barème Macron ) provided by the Labour Code, which depends on the employee’s average sal - ary and their length of service within the company. Indemnity for Null and Void Dismissal If the court finds that a dismissal was null and void, the employee is entitled to an indemnity of at least six months of salary, without any upper limit for the judge to consider. Cases where a dismissal can be deemed null and void include the following: • violation of a fundamental right; • dismissal in connection with psychological harass - ment or sexual harassment; • dismissal pursuant to a discriminatory measure (based on gender, race, medical history, etc) or fol - lowing legal proceedings brought by the employee on the basis of anti-discrimination provisions; • following the denunciation of a crime or offence (especially if the employee is considered a whistle- blower); • violation of requirements concerning protected employees; • violation of the provisions concerning the protec - tion of pregnant employees, employees during leave related to birth or adoption of a child and employees who are victims of an accident at work or occupational disease; and • annulment of the social plan and of the related redundancy procedures. In addition, the employee has the right to be reinstat - ed within the company (without the employer being allowed to object), and the indemnity (of at least six months of salary) will be awarded in addition to the
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