The Specific Compensation Due To An Employee In Case Of Void Dismissal Can Be Reduced By The Judge Only If The Employer Expressly So Requests

• Published date: 02 December 2022
• Subject Matter: Employment and HR, Contract of Employment, Unfair/ Wrongful Dismissal, Employee Benefits & Compensation
• Law Firm: Soulier Avocats
• Author: Mr Matthieu Blaschczyk

Wherever a dismissal is declared null and void because it is based on a prohibited or unlawful ground, the judge is required to examine the other grounds for dismissal, if any, that have been raised in order to determine the amount of the specific compensation to be awarded to the employee... But only if he/she is expressly asked to do so by the employer.

In August 2022, we commented a ruling of the Cour de Cassation (French Supreme Court) which held that in case of unsubstantiated abuse of a fundamental freedom relied upon to justify the dismissal of an employee, the dismissal was void even if other grounds could justify the termination of the employment contract.¹The prohibited ground for dismissal which led to the nullification of the dismissal therefore "contaminates" the other grounds for dismissal, even if such other grounds justified the dismissal.

In a ruling handed down on October 9, 2022², the Cour de Cassation ruled for the first time on the determination of the specific compensation to be awarded to an employee in case of a void dismissal and in the presence of a "contaminating ground".

The French Labor Code provides that an employee whose dismissal is declared void is entitled - when he/she does not request the continuation of his/her employment contract or when his/her reinstatement within the company is impossible - to a specific compensation which may not amount to less than 6 months' salary³.

It should be recalled that a dismissal is void when it is based on a prohibited or unlawful ground. Moreover, when several grounds for dismissal are raised, the mere fact that one of them is prohibited or unlawful entails the nullity of the dismissal, even if the other grounds constitute a real and serious cause that can also justify the dismissal.

However, while the judge is not required to assess the other grounds for dismissal because of the "contaminating" nullity of the sole prohibited ground, such nullity does not exempt...