Starting Point Of The Timeline For Sanctioning Employees And Knowledge Of Wrongdoings By The Immediate Supervisor: The French Supreme Court Recalls The Principle

• Published date: 26 July 2021
• Subject Matter: mployment and HR, Law Practice Management, Unfair/ Wrongful Dismissal, Employee Rights/ Labour Relations, Human Resource Management
• Law Firm: Soulier Avocats
• Author: Mr Fabien Pomart

In two decisions issued on June 23, 2021, the Cour de Cassation (French Supreme Court) recalled that "the employer having knowledge of an employee's wrongdoings" means not only the holder of the disciplinary power but also the employee's immediate superior, even if the latter does not hold this power himself/herself.

Article authored in collaboration with Matthieu Blaschczyk

The employer's power to sanction is strictly regulated by French legislation and case law.

Pursuant to Article L. 1332-4 of the French Labor Code, no employee's wrongdoing alone can give rise to disciplinary proceedings after a period of two months from the day the employer became aware of such wrongdoing.

Judges had already been asked to rule on the definition of "knowledge of the wrongdoings" and had specified that it was the accurate information of the reality, nature and extent of the facts alleged against the employee¹.

There was still some doubt as to who was to be identified as the "employer" having knowledge of these facts.

In two decisions issued on June 23, 2021, the Cour de Cassation recalled the notion of "employer" when it comes to disciplinary matters.

Initially, the employer was considered to be the "person having the power to sanction". In practice, this was the legal representative of the company or his/her delegate, who is generally the Human Resources Director. In other words, it was only from the moment the employer or the HR Director became aware of the employee's wrongdoing that the two-month period for sanctioning the relevant employee or summoning him/her to an interview prior to a possible dismissal started to run².

However, the Cour de cassation has broadened the definition of "employer" to include persons who may have knowledge of wrongdoings and thus trigger the two-month period, as it recalled in its decisions of June 23, 2021. As such, the time limit for summoning the employee to an interview also starts to run from the moment the immediate supervisor of the relevant employee becomes aware of the facts, regardless of whether he/she expressly has the power to sanction.

In the first decision issued on June 23, 2021, an employee had denigrated his company to customers during a meeting held on April 6, 2012. His immediate supervisor, who also attended this meeting, did not inform the company's management of this incident until April 17, and the decision was then taken on June 7, 2021 to summon the employee to a preliminary interview, i.e., one day too late³.

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