Employment & Labour Law
However, the Cour de cassation has recently ruled that the absence of a precise date for the facts of which the employee is accused in the letter of dismissal does not deprive the dismissal of real and serious grounds.
I. The letter of dismissal sets the limits of the dispute
In matters of dismissal, the letter of dismissal sets the limits of the dispute. But what does this rule cover?
All dismissals must be based on a real and serious reason, which must be clearly set out in the letter of dismissal.
Under article L. 1232-6 of the French Employment Code, the letter of dismissal must include a statement of the reason(s) put forward by the employer in support of the dismissal.
These reasons must be precise, materially verifiable and complete.
Indeed, no other grievance or reason may be invoked before the judge if it is not included in the letter of dismissal: the letter of dismissal sets the limits of the dispute.
The dismissal letter must be exhaustive and must enable the judge to examine whether the grounds constitute real and serious grounds for dismissal.
II. The Court of Cassation does not require that the facts complained of in the letter of dismissal be dated
Recently, in a ruling dated 31 January 2024, the Court of Cassation specified that the date of the misconduct alleged against the employee is not mandatory in the letter of dismissal(Cass. Soc. 31 January 2024 no. 22-18.792).
In principle, as stated above, the reason for dismissal must be precise and verifiable by the judge.
While the employer may not present any grievances in addition to those included in the letter of dismissal if the employee contests the measure, the employer is not prohibited from invoking factual circumstances to justify and support the reasons given in the letter of dismissal.
In this case, the Court of Appeal considered that the absence of any mention of the date on which the acts complained of were committed in the letter of dismissal rendered the grounds imprecise and, consequently, the dismissal without real and serious cause.
For the judges of the Supreme Court, the obligation to state precise and materially verifiable reasons in the letter of dismissal does not necessarily require that the facts complained of be dated.
III. The date does, however, make it possible to ensure that the wrongdoing is not time-barred
Despite this position of the Cour de cassation, it is still strongly recommended that the facts alleged against the employee be dated in the letter of dismissal.
While failure to date the wrongdoing does not render the grounds for dismissal imprecise, it may raise a question as to whether the wrongdoing is time-barred.
This was also noted by the Court of Appeal in the case that gave rise to the above-mentioned Court of Cassation ruling of 31 January 2024.
If there is any doubt as to whether or not the employee's alleged misconduct is time-barred, the dismissal may be requalified as a dismissal without real and serious cause by the judge. In labour law, "if there is any doubt, the employee benefits" (article L. 1235-1 of the Labour Code).
In conclusion, although the date of the facts is not mandatory in the letter of dismissal, it is still strongly recommended that it be included in order to neutralise any debate on the statute of limitations for the wrongful acts and to avoid any reclassification of the dismissal as a dismissal without real and serious cause on this basis.
