Will the High Court soon clarify the obligation to provide information about the grievances that are the subject of a summons to interview? 

Court of Cassation, Social Division, 13 September 2023, no. 21-25.830 F-D

An employee who joined a family company in 1978 was appointed Managing Director of the company in 2002, alongside her brother, who was Chairman. In 2012, she eventually lost her position and took on the role of Administrative and Financial Director, while remaining a minority shareholder. 

On 26 September 2016, she was dismissed for gross misconduct, a decision that she challenged before the Labor Court on 9 January 2017, among other claims. On 29 September 2021, the REIMS Court of Appeal partially dismissed her claims. 

Among her grievances, she accused the Company of having disregarded the provisions of the internal regulations (which she had had adopted in her capacity as Managing Director), stipulating that the summons prior to any sanction should inform the employee of the grievances against him. 

This is a substantive condition, failure to comply with which would render the dismissal without real and serious cause. However, according to the Court of Appeal, the employer had complied with its obligation by indicating in the summons that the employee was being summoned for “serious acts committed in the performance of her duties, characteristic of serious misconduct”. 

When asked to rule on this point, the Court of Cassation pointed out that any irregularity in the conduct of the disciplinary procedure provided for in a collective bargaining agreement or internal regulation is treated as a breach of a substantive guarantee and renders the dismissal without real and serious grounds where it deprived the employee of the rights of defence or where it is likely to have had an influence on the employer’s final decision to dismiss in this case. 

However, it points to a certain laxity on the part of the Court of Appeal, which should, according to the High Court, have investigated whether the mere mention in the letter of summons of particularly serious facts, which were not even briefly detailed, did not deprive the employee of the opportunity to prepare her defence effectively during the interview prior to dismissal, so that it did not comply with the provisions of the internal regulations. 

In so doing, the Court of Cassation referred to the REIMS Court of Appeal the task of re-analyzing the case on this point, and of determining whether – in its view – it was necessary to detail the grievances to comply with the employer’s obligation to inform the employee of the grievances against her.