Terminating an employee is never an easy procedure and often isn’t an experience that employers enjoy. In addition to some uncomfortable conversations, there are a number of legal requirements that employers need to be aware of to ensure they correctly and legally dismiss their employees. If you’re an international business, it can be difficult to keep on top of the different regulations across jurisdictions. This article looks at the differences in terminating an employee in England versus France.
How to dismiss an employee in England
What are the different types of dismissal?
Before we take a look at the procedural requirements, it’s necessary to understand the different types of dismissal.
Fair Dismissal
Fair dismissal is where the employer has a valid reason for terminating that employee. Under the Employment Rights Act 1996 there are 5 reasons that fall under ‘fair dismissal’:
- Conduct. This relates to the employee’s behaviours or actions.
- Capability. This relates to an employee’s ability to do the job in question.
- Redundancy. Where their job is no longer necessary within your organisation.
- Legal inability to do their job. Where for a legal reason, the employee is unable to carry out their work.
- Some other substantial reason. An umbrella term that covers other circumstances such as their contract coming to an end, third-party pressure, or the employee refusing to agree to a new contract’s terms and conditions.
However, be aware that even if you have a valid reason, you must act reasonably during the dismissal and disciplinary process in order to fairly dismiss an employee.
There is no set way to ascertain whether an employer has been ‘reasonable’ or not, but factors that will be taken into consideration include whether:
- The employer believed that their reason for dismissing the employee was fair
- They carried out a proper investigation
- They complied with relevant procedures
- They informed their employee that they were considering dismissing them
- They gave their employee the chance to appeal
Unfair dismissal
This is where an employee claims that they’ve been dismissed for an unfair reason, for a reason that was not real, or if you did not act reasonably during the dismissal process.
There are some automatically unfair reasons for dismissal that you should be aware of including reasons relating to:
- Pregnancy or family leave
- Making a flexible working request
- Acting as an employee representative
- Working as a trade union representative
- Position as an occupational pension scheme trustee
- Whistleblowing
Constructive dismissal
Where an employee resigns because you, the employer, have breached their contract of employment in some way. You may see an employee claim constructive dismissal following a decrease in their wages without agreement, an unfair increase in their workload, or being made to work in a dangerous environment, for example. A constructive dismissal could lead to a claim for wrongful dismissal.
Wrongful dismissal
Wrongful dismissal is where the employer breaks the terms of an employee’s contract during the dismissal process. An example is where you dismiss an employee without issuing proper notice.
What is summary dismissal?
Summary dismissal is where an employer dismisses someone with immediate effect without notice (or with pay instead of notice). This usually is the course of action when there has been an instance of gross misconduct such as theft or fraud.
You may find that a Tribunal still finds a summary dismissal to be ‘procedurally unfair’ because you are only allowed to dismiss an employee without pay if you’ve explicitly made a provision for it within their employment contract.
Who can claim unfair dismissal?
Only employees who have worked for the appropriate qualifying period will be able to claim for unfair dismissal (unless they’re claiming on the grounds of an automatically unfair reason).
The qualifying period before 6 April 2012 was one year of employment, after 6 April 2012 this was extended to 2 years of employment.
In addition, there are numerous categories of workers who are unable to bring a claim of unfair dismissal. For example: self-employed people, independent contractors, members of the armed forces, employees with an illegal contract and police officers.
What is the correct dismissal and disciplinary procedure in England?
You need to have written up a disciplinary and dismissal procedure in line with either the ACAS (Advisory, Conciliation and Arbitration Service) code of practice or the LRA (Labour Relations Agency – Northern Ireland) code of practice. You must act reasonably on the basis of a valid reason. Further, you must act consistently. This means you can’t have dismissed one employee for an act that you have let another employee get away with. You must also comprehensively investigate the situation at hand before coming to a decision.
You must give your employee notice of their dismissal in line with either the notice period you outlined in your contract or the statutory minimum period.
For any discipline or grievance case, the procedure that you followed will be scrutinised should the case reach an employment tribunal. This is why it’s highly important to follow your set procedure to a T.
How to dismiss someone in England?
There is no ‘correct’ process for dismissing an employee in England. The only requirement is that you act fairly and in line with the advice set out in the ACAS or LRA.
To ensure you’re dismissing your employee fairly you should:
- Make sure you have a valid reason for dismissing them
- Follow your disciplinary and dismissal procedure in line with the ACAS or LRA
- Act reasonably and consistently and ensure your decision is balanced and as fair as possible
Generally speaking, as laid out in the ACAS, you should establish the facts of each case, inform the employee in question of the situation, allow the employee to be accompanied at any meetings, and provide employees with the opportunity to appeal. Do note, however, that the ACAS guidelines are the minimum processes that you should follow when dismissing or considering dismissing an employee.
How to dismiss someone for ‘misconduct’
When there has been misconduct that is not ‘serious’ or ‘gross’ (such as persistent lateness) you should:
- Arrange a meeting with the employee and explain your reasoning behind considering dismissing them. At this meeting, you should give the employee in question the chance to tell their side of things. If their reasoning does not satisfy you, you should issue a written warning. This written warning should state how you expect they should improve and by when, with non-compliance resulting in a final written warning.
- By the deadline stated in your first written warning, if the employee hasn’t sufficiently changed or improved their behaviour, you should hold another meeting. Again, they will be given the chance to explain their perspective. If again, their reasoning doesn’t satisfy you, then at this point you can issue a final written warning with an updated deadline for improvement.
- By the revised deadline, if they haven’t improved sufficiently, you must then host a third and final meeting. You can decide at this meeting whether you want to give them another chance or opt to dismiss them.
- Inform your employee of whatever your decision is.
How to dismiss someone for ‘serious misconduct’ or underperformance
In instances of serious misconduct, the employer is able to give the employee in question a ‘first and final’ written warning in which you explain that insufficient improvement could lead to their termination.
How to dismiss someone for gross misconduct
Instances of gross misconduct give the employer the ability to dismiss the employee with immediate effect as long as you follow fair and reasonable process. This includes investigating the incident, gathering evidence, and giving the employee in question a chance to state their case.
What penalties can you face for unfair dismissals?
As an employer, it pays to know what liability you’re exposed to should you not follow the correct procedure. If a tribunal concludes you have unfairly dismissed an employee, they could order you to:
- Give them their job back
- ‘Re-engage’ them, meaning employing them again. But in a different area of your business
- Pay them compensation
Can I dismiss someone without notice?
You can only dismiss someone without notice in instances of gross misconduct, otherwise you must give your employee notice of when they will be terminated. In addition, most employees will be eligible for notice pay which is equivalent to the same pay they would have earned should they have worked their notice period. That being said, the notice pay might be a little different because of time off or holiday.
Terminating an employee in France
When you want to dismiss an employee in France, you must show that you have a ‘real and serious reason’ for wanting to do so and strictly respect the dismissal procedures.
Dismissals in France are divided into two categories – ‘inherent to the person of the employee’ or ‘an economic reason’.
Dismissals inherent to the person of the employee
This kind of dismissal is related to the employee themselves rather than other adverse causes. Your reason for dismissal under reasons inherent to the person of the employee can relate to their:
- Their insufficient capacity to carry out their job
- Insufficient results of their work
- Disagreement
- Transfer or activity
- Misconduct
Under article L1232-1 of France’s Labour law, any dismissal coming under the category of ‘inherent to the person of the employee’ must be based on a real and serious cause. In other words, for a disciplinary reason or for incorrect behaviour. Any disciplinary dismissal must be caused by behaviour that was voluntary on the part of the employee and you cannot have approved (implicitly or explicitly) of their actions.
There are three categories of misconduct:
- Faute simple (‘simple fault’). A simple fault can be enough to justify dismissal bu your employee will be entitled to severance pay and compensation for advance notice and compensation for paid leave.
- Faute grave (‘grave fault’). A grave fault would mean it was no longer possible for the employee to continue working for you. Dismissing an employee on the grounds of a ‘grave fault’ mean they would have to leave immediately without severance pay or compensation.
- Faute lourde (‘gross fault’). A gross fault is where that employee intends to damage the employer. It falls to you as the employer to demonstrate that there was indeed intention to damage.
Dismissals for an economic reason
Dismissals for an economic reason are not related explicitly to the individual employee, but rather to other circumstantial factors such as economic hardship or technological transformations taking place within the company. Again, as above, you must be able to prove that your reason for dismissal is ‘serious and real’. Dismissals for an economic reason can be because of:
- Economic difficulties. If your company runs into financial troubles, this can constitute a reason for dismissing an employee.
- Technological transformation. Where you start to use a new technology that might affect the viability of one of your employees’ jobs.
- Reorganisation of your company and transfer of activities.
How to dismiss an employee in France
1.Summon your employee for a preliminary interview.
You must invite your employee to an interview in which you explain your reasoning for wanting to dismiss them.
2. Summons
You should deliver the summons personally (or opt for recorded delivery). If you are dismissing your employee for disciplinary reasons, you must send the summons at the latest 2 months from the date that you acknowledged the facts. The letter should contain all the relevant information pertaining the preliminary interview – I.e. the date, time and place, as well as the reason for it.
Note, the interview must be at least 5 working days after the receipt of the letter, and the interview must take place in your place of work or head office of the company.
3. Preliminary meeting
During your preliminary meeting, you’ll have to explain to your employee why you’re dismissing them. As we said above, you will need to demonstrate that you have a real and serious reason. After this meeting, you can conclude and confirm that you will be dismissing them.
4. Notify your employee officially of their dismissal
You must notify your employee of their dismissal at least 2 working days after the preliminary interview has taken place. Then you have to sign the official dismissal latter letter which also sets out the reasons for the dismissal as well as all relevant rights and duties of both parties. You should send this letter by tracked mail so that you can confirm when they have received it. Your employee is obliged to acknowledge receipt of the letter and can then raise a dispute at an employment tribunal.
5. End of the contract
If you’ve dismissed your employee on grounds of a ‘faute lourde’ or ‘faute grave’, their contract will be immediately terminated. If not, then you’ll have to give your employee a period of notice.
What is the statutory notice period in France
Note, that if you dismiss an employee because of gross misconduct, negligence or incapacity then your employee is not entitled to a notice period.
The notice period that an employee is entitled to, corresponds to their position within your business.
For 6 – 24 months – 1 months
For 24+ months, 2 months
The notice period begins only once they have received their letter of dismissal. However, note that if an employee wants to be released early, they can be, with the approval of their employer.
Note that if your employee has been working for you for more than 8 months, they are probably entitled to severance pay. This is calculated by either:
- the monthly average of the 12 months prior to their dismissal or the monthly average of all months prior to termination
- If they’ve been with you for less than 12 months, a third of monthly salary for 3 months prior to the termination of the contract
Employment law is tricky and complex at the best of times. Throw in a foreign working environment or a different approach entirely, and it can be overwhelming for international employers. That’s where 360 Business Law’s expert lawyers come in. We offer global legal services for a transparent and affordable price. Get in touch to see how we can help you and your business today.
Sources:
https://www.gov.uk/dismiss-staff/how-to-dismiss-someone
https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures