Labor law reform: new procedure of specification of the motives stated in a dismissal letter
Ordinance n°2017-1385 of 22 September 2017 on the predictability and securing of working conditions introduced a measure whereby the employer, on its own initiative or at the request of the employee, may clarify the motivation of a dismissal after its notification (article L. 1235-2 of the Employment Code).
This measure entered into force on 17 December 2017, immediately after the publication of implementing decree n°2017-1702 on the procedure of specification of the motives stated in a dismissal letter, which created articles R. 1232-13 and R. 1233-2-2 of the Employment Code.
This new legislation is applicable to all terminations notified on or after 18 December 2017. It applies both to dismissal procedures based on personal or economic grounds.
From now on, in the 15 days following the notification of a dismissal, the employer can, on its own initiative, clarify the motives underlying its decision to the terminated employee.
In this same time length, the employee can ask the employer to further explain the motives stated in the dismissal letter.
In this situation, the employer may, within 15 days from the reception of the employee’s request, provide more specific details.
The employee’s request and the communication of the employers’ precisions must both be sent by registered letter with acknowledgement of receipt.
The dismissal letter and the mail clarifying the initial motives will then frame any subsequent dispute (article L. 1235-2 of the Employment Code).
It is important to mention that this mechanism only allows to clarify the motives stated in the dismissal letter, but does not make it possible to complete or modify them as was initially foreseen by the draft ordinance.
The spirit of the law is not to offer a “second chance” to the employers who could have been too elusive in the motivation of their decision, but rather to reduce conflicts merely caused by a lack of communication between the employer and the employee.
This new rule also puts an end to a constant case-law, which stated that a lack of motivation in the dismissal letter could, alone, entail that the dismissal has no real and serious cause meaning that it is unfair.
Henceforth, if the employee doesn’t request precisions, any lack of motivation in the dismissal letter will not imply that the dismissal is deprived of a real and serious cause. It will only characterize a mere formal irregularity, which could give rise to a claim for damages. Such a claim would be limited in amount to no more than a one-month-salary.
However, if the employee requests more precisions about the motives of his dismissal and if the judges consider that the letter is too elusive, the dismissal may still be considered without a real and serious cause.
Consequently, employees will request almost systematically precisions about the motives stated in their dismissal letter in order to preserve their right to claim, in a judicial proceeding, that their dismissal is unfair.
In conclusion, except if the letter of dismissal is fully complete, it will be suitable for the employer to reply to clarification requests with the utmost attention.