Can a pre-dismissal meeting be held by videoconference?

Reminder

Under French law, the decision to dismiss an employee must be preceded by a mandatory pre-dismissal meeting aiming at (Articles L. 1232-2 et seq.):

• Providing the reasons leading the employer to consider the dismissal
• Listening to the employee’s explanations for the alleged facts or grievances.

Terms and conditions of the pre-dismissal meeting are precisely defined by the Labour Code in order to guarantee the employee’s defence rights.

For instance, the employer must observe a delay of 5 working days between the invitation of the employee and the actual date of meeting.

Moreover, the employee has the possibility to be assisted during the meeting either by a staff representative, another employee or registered employee’s counsel.

What about videoconference?

There is no provision relating to the possibility to proceed to the pre-dismissal meeting by videoconference although new IT devices are expanding in working relationships.

This lack was especially noteworthy this year when companies had to adapt their organization to respect the lockdown linked to the Covid-19 pandemic.

Past decisions of the Supreme Court seemed to consider that the employer and the employee must be physically present at the pre-dismissal meeting:

• First, the Supreme Court stated that the pre-dismissal meeting cannot be replaced by a telephone conversation (Supreme Court, November 14th, 1991, n°90-44.195).
• Then, the Supreme Court provided that the pre-dismissal meeting must be held in the company’s premises and cannot occur in another place without a legitimate reason (Supreme Court, May 9th, 2000, n°97-45.294).

Nevertheless, these decisions are more than 20 years old and not adapted to the evolution of technologies and working relationships.

This being said, several Courts of Appeal ruled on the use of videoconference, but their opinions differ.

On one side, the Courts of Appeal of Bourges (November 15th, 2019, n°18/00201) and Grenoble (January 7th, 2020, n°17/02442) considered that the Labour Code does not allow any other way to lead a pre-dismissal meeting than a meeting in person. However, they recalled that this irregularity does not challenge the validity of the dismissal: the employee may only benefit from specific damages.

On the other side, the Courts of Appeal of Rennes (May 11th, 2016, n°14/08483), and more recently that of Versailles (June 4th, 2020, n°17/04940), decided that the use of videoconference during a pre-dismissal meeting is possible in exceptional cases and providing parties agree on it.

In particular, the Court of Appeal of Versailles provided two conditions for the use of videoconference to be valid:

1. The employee’s rights must be respected.
2. The employee must have been in a position to defend himself properly.

In the case at hand, thanks to the meeting report, judges noted that the employee was able to be assisted during the meeting, which was sufficiently long for parties to discuss. Besides, judges raised that even if the employee asked the employer to reschedule the meeting, which he refused, he was finally able to participate and to defend himself.

Therefore, judges concluded that the use of videoconference had no consequence on the employee’s rights and his ability to defend himself.

Awaiting a decision from the Supreme Court…

Considering the different point of views of Courts of Appeal, a decision from the Supreme Court is more than ever awaited.

During the French lockdown, the Labour Ministry indicated in a Q&A that employers could proceed to pre-dismissal meetings by videoconference providing the following conditions were fulfilled:

• The employee had to agree.
• The technical mean used had to guarantee a good transmission and reception of the sound and image, with no interruption during the entire meeting.

The Ministry also recommended to draft a faithful and specific meeting report to avoid any risk of litigation.

Will the Supreme Court be equally pragmatic to authorize videoconference in the context of a pre-dismissal meeting? To be continued…