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France
 


Source and scope of regulations - 2012    

References
Remarks:
  • Note: The consolidated version of the Labour Code is regularly updated.
  • Labour Code (2007-2008: new codification), as subsequently amended, consolidated version dated 31 December 2012 (Code du travail - in French only)
    Date: 31 Dec 2012; view website » (view in NATLEX »)
Scope
Size of enterprises excluded (≤): 10
Remarks:
  • There is no general exclusion based on the size of the enterprise. However, the LC provides for exemptions from some procedural requirement for enterprises employing less than 11 workers in particular with respect to sanctions in the event of non compliance with dismissal (procedural and substantive)requirements. See art. L. 1235-5 LC and art. L. 1235-14 LC (on economic dismissal).
    In addition, employees' representatives ("délégués du personnel") who shall be consulted in the event of collective dismissal must be elected only in companies employing at least 11 workers.

Workers' categories excluded: civil/public servants; police; army; judiciary
Remarks:
  • The employment relationship of those categories is governed by public law regulations.

Types of employment contracts - 2012    

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Maximum probationary (trial) period: 8 month(s)

Remarks:
  • Art. L 1221-19 LC & L. 1221-21 LC: max. 4 months renewable once.

Fixed term contract (FTC):
  • FTC regulated: Yes
  • Valid reasons for FTC use: objective and material reasons
    Remarks:
    • See art. L 1242-1 LC to L. 1242-4 LC.
      Art L 1242-2 LC: exhaustive list of situations when the use of FTC is authorized.
  • Maximum number of successive FTCs: 2
    Remarks:
    • Art. L 1243-13 LC
  • Maximum cumulative duration of successive FTCs: 24 month(s)
    Remarks:
    • Art. L 1242-8 LC.
      General rule: 18 months maximum.
      Depending on the grounds for resorting to a FTC, it can be up to 24 months in 3 specific situations.
  • % of workforce under FTC: 15.2 %
    Remarks:
    • Source: Eurostat, annual average for 2012.
      The figure refers to the percentage of employee with a contract of limited duration (= temporary job) of total number of employees.
      Eurostat data are based on the following definition:
      "A job may be considered temporary if employer and employee agree that its end is determined by objective conditions such as a specific date, the completion of a task or the return of another employee who has been temporarily replaced (usually stated in a work contract of limited duration). Typical cases are: (a) persons with seasonal employment; (b) persons engaged by an agency or employment exchange and hired to a third party to perform a specific task (unless there is a written work contract of unlimited duration); (c) persons with specific training contracts."

Substantive requirements for dismissals (justified and prohibited grounds) - 2012    

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Obligation to provide reasons to the employee: Yes
Remarks:
  • Motives must be provided by the employer during a prior oral interview: art L1232-3 LC.
    In addition, the reasons behind the dismissals should be exposed in the letter of notification of the dismissal: art. L1232-6 LC


Valid grounds (justified dismissal): any fair reasons
Remarks:
  • Individual dismissal: must be justified by a serious and genuine cause ("cause réelle et sérieuse"): art. L 1232-1 LC
    Dismissal for economic reasons: must be equally justified by a serious and genuine cause : art. L 1233-3 LC.


Prohibited grounds: marital status; pregnancy; maternity leave; temporary work injury or illness; race; colour; sex; sexual orientation; religion; political opinion; social origin; nationality/national origin; age; trade union membership and activities; disabilities; participation in a lawful strike; whistle blowing; gender identity; state of health; adoption leave; performing jury service; genetic information; ethnic origin
NOTE: This information has changed since the previous period covered.
Remarks:
  • Art. L 1132-1 LC: list of prohibited grounds of discrimination. [New in 2012: gender identity was introduced as a new prohibited ground by Law No 2012-954 of 6 August 2012]
    Art. L 1132-2 LC: lawful exercise of the right to strike.
    Art. L1132-3 LC: whistle blowing.
    Art. L1132-3-1 LC: performing jury service [New in 2011: new ground introduced by Law No 2011-939 of August 2011]
    Art. L 1225-4 LC: dismissal is prohibited during pregnancy, where this has been medically certified, during maternity leave (whether or not the worker uses the right to take the leave). Dismissal is nonetheless permitted in case of a serious fault of the worker unrelated to pregnancy, or when the employer is unable to maintain the contract of employment for reasons unconnected with pregnancy or confinement. The same protection against dismissal applies to a employee in adoption leave (see art. 1225-38 LC)


Workers enjoying special protection: workers' representatives; pregnant women and/or women on maternity leave
Remarks:
  • *Workers' representatives:
    - Trade union representatives and other worker's representatives: art. L 2411-1 LC
    - Worker's adviser: art. 1232-14 LC
    * Pregnant women and women on maternity leave: art. L 1225-4 and L 1225-5 LC, employees on adoption leave: art 12225-38 LC
    Dismissal is prohibited during pregnancy, where this has been medically certified, during maternity leave (whether or not the worker uses the right to take the leave) and during the period of paid adoption leave, as well as during four weeks after the end of maternity and adoption leave. Dismissal is nonetheless permitted in case of a serious fault of the worker unrelated to pregnancy, or when the employer is unable to maintain the contract of employment for reasons unconnected with pregnancy, confinement or adoption. However, the dismissal or notice of dismissal may not take place during the periods of maternity and adoption leave.


Procedural requirements for individual dismissals - 2012    

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Notification to the worker to be dismissed: written

Remarks:
  • Letter of notification: art. 1232-6 LC.
    (Mandatory oral interview prior to written notification with possible representation by an adviser: art. L 1232-2 LC.)

Notice period:
Remarks:
  • According to art. L 1234-1 of the LC, the minimum mandatory notice period (excl. in cases of serious misconduct) is the following:
    *1 month for tenure of more than 6 months and less than 2 years.
    *2 months for at least 2 year-tenure.
    *For tenure of less than 6 months, the notice period is to be defined by law, collective agreements or customs of the trade.

    Note: In case of force majeure, no obligation to respect the notice period : art. L 1234-12 LC
    • tenure ≥ 6 months
      • 1 month(s).
    • tenure ≥ 9 months
      • 1 month(s).
    • tenure ≥ 2 years
      • 2 month(s).
    • tenure ≥ 4 years
      • 2 month(s).
    • tenure ≥ 5 years
      • 2 month(s).
    • tenure ≥ 10 years
      • 2 month(s).
    • tenure ≥ 20 years
      • 2 month(s).

    Pay in lieu of notice: Yes

    Remarks:
    • Art. 1234-5 LC

    Notification to the public administration: No

    Notification to workers' representatives: No

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: No

    Procedural requirements for collective dismissals for economic reasons (redundancy, retrenchment) - 2012    

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    Definition of collective dismissal (number of employees concerned):
    The labour code defines economic dismissal but not collective dismissals.
    However, the LC contains specific sections on the legal requirements applicable to economic dismissal concerning:
    1) less than 10 employees over a 30-day period;
    2) 10 or more employees over a 30-day period.

    Remarks:
    • See: art. L 1233-3 LC, art. L 1233-8 LC, art. L 1233-21 LC

      NB: Special additional category: dismissals following bankruptcy: art. L 1233-58 LC.

    Prior consultations with trade unions (workers' representatives): Yes

    Remarks:
    • * Dismissals concerning less than 10 employees over a 30 day period: art. L 1233-8 to L 1233-10.
      * Dismissals concerning 10 or more employees over a 30 day period: art. L 1233-28 to L 1233-33 LC.

      (Criminal penalties for failure to observe those requirements: art. L1238-2 LC)

    Notification to the public administration: Yes

    Remarks:
    • * Less than 10 employees over a 30 day period of time: art. L 1233-19 LC.
      * 10 or more employees over a 30 day period: art. L 1233-46 LC.

      + Criminal penalties for failure to observe the notification requirement: art. L 1238-4 LC.

    Notification to workers' representatives: Yes

    Remarks:
    • * Less than 10 employees over 30 days: art. L 1233-8 to L 1233-10
      *10 or more employees over 30 days: art. L 1233-28 to L 1233-33 LC.

    Approval by public administration or judicial bodies: No

    Remarks:
    • Intervention of the administration: verifies the regularity of the procedure (with regard to information to the workers' representatives, adoption of social plan) and gives advisory opinion but no power to adopt binding decisions: See L 1233-52 to L 1233-57 LC.

      However approval is requested prior to dismissal of some protected workers (i.e. trade union rep. : art. L 2411-3 LC).

    Approval by workers' representatives: No

    Priority rules for collective dismissals (social considerations, age, job tenure): Yes

    Remarks:
    • Art. L 1233-5 LC:
      Criteria to be used:
      1) family responsibilities
      2) length of service
      3) social considerations: difficult re-entry in the labour market (in particular for elderly employees and disabled persons)
      4) skills.

    Employer's obligation to consider alternatives to dismissal (transfers, retraining...): Yes

    Remarks:
    • Art. L 1233-4 LC (general retraining and redeployment obligation applicable to any collective dismissal)
      In particular:
      *Mandatory "employment safeguard plan" (plan de sauvegarde de l'emploi) for enterprises with more than 50 employees in case of a collective dismissal concerning 10 or more employees over a 30 day period: art. L 1233-61 to L 1233-64 LC.
      For failure to adopt a mandatory social plan, compensation awarded by the judge cannot be less than the last 12 month's wages (art. L1235-11 LC).

      (In addition, depending on the size of the company, the following measures can be mandatory: "reclassification leave" (congé de reclassement), "individual reclassification programme" (convention de reclassement personnalisée), "revitalization of the labour market area" (revitalisation des bassins d'emploi): art. 1233-65 to L 1233-90 LC).

    Priority rules for re-employment: Yes

    Remarks:
    • In case of dismissal of 10 or more employees over a 30 day period: preferential rehiring within a limit of 1 year and if requested by the employee: art. L 1235-45 LC.
      See also art. L 1233-45 LC: non observance of the preferential right to re-employment entails compensation that shall amount to 2 months' wages).

    Severance pay and redundancy payment - 2012    

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    Severance pay:
    Remarks:
    • Art. L 1234-9 LC (last amended by Act No 2008-596 of 25 June 2008): right to severance pay after a tenure of at least 1 year without interruption, except in case of serious misconduct.
      The calculation modalities are determined by art. R 1234-2 LC:
      The statutory minimum is 1/5 of monthly wages per year of service.
      For employees with more than 10 years of service, 2/15 of the monthly wages multiplied by the number of years of service beyond 10 years should be added.

      Ex:
      Tenure of 1 year: 1/5 x 1 = 0.2
      Tenure of 20 years: (1/5 x 20) + (2/15 x 10) = 5.33
    • tenure ≥ 6 months: 0 month(s)
    • tenure ≥ 9 months: 0 month(s)
    • tenure ≥ 1 year: 0.2 month(s)
    • tenure ≥ 2 years: 0.4 month(s)
    • tenure ≥ 4 years: 0.8 month(s)
    • tenure ≥ 5 years: 1 month(s)
    • tenure ≥ 10 years: 2 month(s)
    • tenure ≥ 20 years: 5.33 month(s)
    Redundancy payment:
    Remarks:
    • No specific redundancy payment. Severance pay covers economic (individual and collective) dismissals (Art. L 1234-9 LC).
    • tenure ≥ 6 months: 0 month(s)
    • tenure ≥ 9 months: 0 month(s)
    • tenure ≥ 1 year: 0.2 month(s)
    • tenure ≥ 2 years: 0.4 month(s)
    • tenure ≥ 4 years: 0.8 month(s)
    • tenure ≥ 5 years: 1 month(s)
    • tenure ≥ 10 years: 2 month(s)
    • tenure ≥ 20 years: 5.33 month(s)

    Avenues for redress (penalties, remedies) and litigation procedure for individual complaints - 2012    

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    Compensation for unfair dismissal - free determination by court: No

    Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
    Absence of serious and genuine cause:
    The judge awards compensation which as a minimum shall amount to 6 months' wages.

    Remarks:
    • See art. L 1235-3 LC.

      In addition, when the dismissal is justified by a serious and genuine cause but the employer fails to observe the prescribed procedure for individual dismissals, compensation awarded by the judge cannot exceed one month's wages (art. L 1235-2 LC).

    Reinstatement available: Yes

    Remarks:
    • Art. L 1235-3 LC :
      The judge can prescribe reinstatement in case of absence of a serious and genuine cause.

    Preliminary mandatory conciliation: Yes

    Remarks:
    • Art. L 1411-1 LC: conciliation takes place before the conciliation section of the labour court "Conseil des Prudhommes".

    Competent court(s) / tribunal(s): labour court

    Remarks:
    • Art. L 1411-1 LC

    Existing arbitration: No

    Length of procedure: 10 month(s)

    Remarks:
    • This duration is not specific to litigation procedures on individual dismissal but includes all cases brought before the "Conseil des Prud'hommes" for the year 2009.
      It does not include appeal procedures.

      Source: http://emploi.france5.fr/emploi/droit-travail/conflits/66844361-fr.php (last accessed in February 2011)

    % of dismissals out of the total number of disputes: 70 %

    Remarks:
    • Statistics for 2007 - Source: Study of the French Ministry of Justice (2009)
      (See: http://www.cabinet-catry.com/statistiques-des-conseils-des-prud-hommes_ad30.html)

    Source of additional information - 2012    

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    Links

    Use of International Law by Domestic Courts (ICT-ILO) - Compendium »
    Go to "Dismissal" (second item) / France.

    ILO Committee of Experts on the Application of Conventions and Recommendations - Comments on the ILO Termination of Employment Convention, 1982, No. 158 (from 1990) »