Invalid dismissal: in case of multiple reasons, the employer can limit his condemnation!

(Cass.soc.19 October 2022 n°21-15.533)

As you know, and as we have already mentioned several times in these columns, the Labour Code stipulates that dismissal is necessarily null and void if one of the complaints against the employee infringes a fundamental freedom.

However, and this is a useful clarification, this nullity does not exempt the judge from examining the other grievances and taking them into account in assessing the amount of the employee’s loss.

Unfortunately, this is not automatic… at least that is what the judgment in this case shows.

Let’s come back to this.

1. The facts of the case

On 12 October 2018, a dental assistant was given an unjustified warning by her employer.

On 30 November 2018, she applied to the labour court for termination of her employment contract and cancellation of the warning she had been given.

On 28 December, her employer notified her of her dismissal for real and serious reasons, in particular on the grounds of difficulties encountered in the employment relationship since the industrial tribunal action she had taken.

However, such a grievance is necessarily prohibited since it is now settled case law that :

“is null and void as infringing a constitutionally guaranteed fundamental freedom, the dismissal that occurs because of a legal action brought or likely to be brought by the employee against his employer” (Cass. soc., 28 Sept. 2022, n° 21-11.101)

Thus, the case was brought before the Court of Appeal, which found that the dismissal was null and void and ordered the employer to pay damages to the employee.

The employer therefore appealed to the Court of Cassation, criticising the Court of Appeal for not having taken into account the other grievances.

Indeed, Article L.1235-2-1 of the Labour Code states that :

” In the event of multiple grounds for dismissal, if one of the complaints against the employee infringes a fundamental freedom, the termination of employment is null and void does not exempt the judge from examining all the grievances set out, in order to take them into account, where appropriate, in his assessment of the compensation to be awarded to the employeewithout prejudice to the provisions of Article L. 1235-3-1. ”

It is true that, as it stands, the text does not provide any details on the modalities of this examination by the judges.

2. The position of the Court of Cassation

Unsurprisingly, the High Court upheld the appeal judgment on the question of the nullity of the dismissal, but provided major clarifications on the limitation of the employer’s liability in the event of multiple reasons.

Indeed, in its decision, it stressed:

• that the provisions of Article L.1235-2-1 of the Labour Code offer the employer a defence on the merits of the amount of compensation to which he may be ordered, which must be submitted to the adversarial debate,

• but more importantly, she said: ” where the employer so requests, the judge shall examine whether the other grounds invoked are well-founded and may, where appropriate, take them into account in order to set the amount of compensation paid to the employee who is not reinstated, in compliance with the six-month minimum provided for by Article L. 1235-3-1″.

Consequently, it logically validated the amount of the prejudice determined by the Court of Appeal, since the employer had not, in the alternative, criticised the amount of this compensation and a fortiori requested that its amount be limited in view of the existence of other grievances at the root of the dismissal. Unfortunately, it had confined itself to a position of principle, not sufficiently precise, as mentioned above.

3. The scope of this judgment

It follows from this decision that the employer, as a party to a dispute that may lead to the nullity of the notified dismissal, must, if he wishes to limit his compensation award on this count, and only in the event of multiple grounds, clearly formulate the request before the judges.

Only then can he possibly reduce the financial impact of his future conviction.

The judgment under review also clarifies the cases in which the employer must reimburse the sums paid to the employee by the unemployment insurance.

Indeed, under Article L.1235-4 of the Labour Code: ” the judge orders the employer at fault to reimburse to the organisations concerned all or part of the unemployment benefits paid to the dismissed employee, from the day of his dismissal to the day of the judgment, up to a limit of six months of unemployment benefits per employee concerned ”

More specifically, this text concerns dismissals pronounced :

• against an employee as a result of his or her legal action for discrimination, or his or her action on the basis of the provisions on professional equality between women and men;
• on discriminatory grounds;
• or against an employee who is a victim of moral or sexual harassment or who has reported or testified to such acts.

In the present case, the employee had applied to the labour court for the termination of her employment contract and it was partly on this ground that the employer had dismissed her.

The Court of Cassation therefore rightly observed that the reasons for the employee’s referral to the court did not fall within the very specific situations As a result, the employer could not legitimately be held liable in this respect, and therefore had nothing to pay to the unemployment insurance.

It follows from the above that the employer must retain from this decision that in the event of null and void dismissal, and in the presence of a plurality of reasons, he may request the limitation of the compensation due to the employee, which is however not automatic and remains subject to an express request on his part during the debates.

And that in any case, apart from the cases specifically provided for, he will not have to repay the Pole Emploi benefits, as is usually the case.