In case of collective dismissal for economic reasons, the employer must be able to demonstrate the validity of the criteria applied.

Two rulings of January 18, 2023 call for caution in the determination of the criteria of order in the context of a collective dismissal for economic reasons.

In accordance with article L. 1233-5 of the French Labor Code, the employer must take into account the following criteria when determining the order of dismissals:

1. Family responsibilities, in particular those of single parents;
2. Seniority of service in the establishment or company;
3. The situation of employees with social characteristics that make their professional reintegration particularly difficult, in particular that of handicapped persons and elderly employees;
4. The professional qualities assessed by category.

In the event of a dispute, the employer must be able to justify by objective elements the validity of the criteria applied.

Thus, the Court of Cassation considers that the following criteria are not relevant:

• The professional quality cannot be assessed solely on the basis of the level of diploma, more particularly if the diploma is not relevant to the functions performed (Cass. Soc., January 18, 2023, n°21-19.675) ;
• Family responsibilities cannot be weighted according to the age of the dependent child, as this distinction is not relevant and objectively justified with regard to the real responsibility of the children in view of their age (Cass. Soc., January 18, 2023, n°21-19.633).

The assessment of the criteria of order therefore remains a particularly sensitive issue in the case of collective redundancies for economic reasons. If the employer fails to comply, he is liable to pay damages to all employees who have suffered prejudice as a result.