The individual obligation to redeploy internally, within the company and the group, plays a central role in redundancy schemes for economic reasons. It requires the employer to seek out and offer available jobs in the same or equivalent category (or even in a lower category if the employee agrees), located in France, in the company or in other companies in the group (for those whose organization, activities or place of operation allow for employee swapping) (article L 1233-4 of the French Labor Code).
Non-compliance with this rule is punished by the absence of real and serious cause for dismissal, in the same way as the absence of a causal element (i.e. economic difficulties, the need to safeguard competitiveness, etc.) or a material element (i.e. the absence of a real job loss, for example).
The scope and implementation of this obligation are frequently the subject of disputes before industrial tribunals.
The two rulings handed down on September 11 by the Social Division of the French Supreme Court (Cour de cassation) address two aspects of this obligation.
First ruling (n° 23-11.626): what is the consequence of an insufficiently precise search for internal redeployment within the group if the employer can demonstrate the absence of redeployment positions at the time of redundancy?
In this case, the Court of Appeal found that the employer had failed to carry out a serious and fair search for redeployment positions within the group, since the letter sent to the companies requesting redeployment positions was limited solely to indicating the name of the branch of employment of the employees, with no indication of the name or classification of the position held by them. Based on this finding, the Court of Appeal concluded that the employer had failed in its obligation to redeploy the employee internally, even though the employer maintained that no redeployment position could be offered.
The Cour de cassation, after stating that “there is no breach of the obligation to redeploy if the employer can justify the absence of an available position, at the time of dismissal, in the company or, if applicable, in the group to which it belongs“, overturned the decision of the Court of Appeal on the following grounds:
“In so ruling, without investigating whether, as it maintained, the employer, who had included in the debates the reply letters sent by the other companies in the group, did not justify, at the time of the termination of the employment contract, the absence of an available position within the companies of the group, the Court of Appeal did not provide a legal basis for its decision“.
This decision echoes an earlier one, dated January 14, 2009 (no. 07-42.056), in which the Cour de cassation overturned an appeal court ruling that had found a breach of the obligation to redeploy on the grounds that the company had sent a letter to the other companies in the group, asking them about their redeployment possibilities, without specifying any elements relating to the activity of the employees concerned, their skills, their adaptability, their qualifications or their age. The Court of Appeal considered that the employer had not demonstrated that it had conducted a fair search for redeployment positions. This was even though the employer had received a negative response from each of the group’s companies, ruling out any possibility of redeployment. The Court of Cassation overturned this decision on the grounds of breach of the law.
Conclusion: even if the letter requesting redeployment is not sufficiently precise, the employer cannot be accused of failing to meet its redeployment obligation if it can demonstrate that no redeployment position was available.
However, this can be difficult to demonstrate, particularly in the case of large groups, if the letters requesting redeployment do not meet the requirements of case law. Indeed, unless the companies’ responses indicate that there are no vacant positions or positions likely to be created at the time of the dismissal (as seems to have been the case in the 2009 ruling), the terms of the group companies’ response to the employer’s request will necessarily be assessed in the light of the precision of the request itself.
It is therefore preferable to prepare precise letters of interest to avoid this type of difficulty.
Unfortunately, when it comes to the content of these search letters, case law is not always perfectly consistent, and some rulings impose details not requested in others (the vagaries of case law 😊).
To the best of our knowledge, the last ruling published in the bulletin on this subject dates back to 2021 (Cass. soc., March 17, 2021, no. 19-11.114). In this ruling, the Cour de cassation considered that a letter listing the job titles and classifications of all the positions eliminated was sufficient. However, we need to keep a close eye on decisions on this point and, of course, check the provisions of the collective bargaining agreement!