The facts
A company implements a job-saving plan approved by the Labor administration.
As part of the internal redeployment process, it is limited to proposing redeployment positions identified in the PSE.
The employees brought an action for dismissal without real and serious cause on the grounds that the employer had failed to meet its internal redeployment obligation. They argued that the employer had not actively sought out internal redeployment positions. The Appeal Court ruled that the employees’ argument was well-founded.
The decision of the Cour de cassation
The Court approves the decision of the Court of Appeal:
” 16. It follows that it is the employer’s responsibility, even when a job protection plan has been drawn up, to investigate whether or not there are redeployment opportunities provided for in this plan and to make precise, concrete and personalized offers to each of the employees whose redundancy is envisaged, of each of the jobs available, corresponding to their qualifications.”
This decision is hardly surprising.
The individual redeployment obligation at the PSE implementation stage is not to be confused with the “collective” internal redeployment obligation within the framework of the PSE procedure, which consists of identifying, at the date of the PSE procedure, the internal redeployment positions available within the Group (number, type and location).
During the implementation phase, the employer must continue to search for internal redeployment positions that may become available and offer them in accordance with the redeployment procedure defined in the PSE.
However, it should not be inferred from this decision that the obligation to make an individual proposal applies irrespective of the procedure for proposing the positions defined in the PSE.
In fact, it was the previous version of article L. 1233-4 of the French Labor Code that was applicable to the events that gave rise to the judgment. At the time, this article did not provide for the possibility of proposing positions by circulating a list. If the latter method of proposal has been chosen, as has been possible since August 9, 2015, there is no need to send individualized reclassification proposals.
This ruling is a reminder that, while the decision to validate or approve a redundancy plan is obviously fundamental, the implementation phase is just as crucial, particularly in terms of internal redeployment.