September 11, 2024 Appeal no. 23-10.460
In the context of a redundancy scheme for economic reasons, an employer offered employees internal redeployment opportunities for positions available within the group. These offers consisted of an invitation to employees to apply for the position(s) proposed. They specified that if the employees did apply, an interview could be organized with a dedicated person to ensure that their abilities were compatible with the job for which they had applied.
The Reims Court of Appeal had ruled that these proposals were not serious in that they invited employees to apply. The Court of Appeal therefore did not rule on whether the interview scheduled to verify the employee’s skills could invalidate the outplacement offer.
In its appeal to the FSC, the company argued in particular that this process was valid and that Group companies were entitled to demand that they themselves assess, following an individual interview, the suitability of the employee’s profile for the positions to be filled within them.
This is where the Cour de cassation comes into its own.
Contrary to the Court of Appeal, the French Supreme Court does not consider that inviting employees to apply for proposed redeployment positions is likely to render the redeployment proposal irregular.
While it ultimately upheld the position of the Court of Appeal, it relied on the fact that the interview scheduled as part of the internal redeployment process to verify the suitability of the employee’s profile was not intended to decide between employees who had accepted the same redeployment position:
“In the light of these findings, which did not show that this recruitment procedure was intended to allow a decision to be made between employees in the event of multiple applications for the same position, the appeal court was able to deduce that these offers, which were not firm and did not guarantee the employee’s effective redeployment in the event of a job becoming available within the group, did not meet the legal requirements.”
This decision follows on from a previous ruling in 2015, in which it had already held that “the outplacement offers sent to the employees specified that the recruitment had to be validated by the Quintiles Group’s head of recruitment for France and the manager of the department concerned, the Court of Appeal deduced exactly from this that these offers, which were not firm and did not guarantee the employee’s effective outplacement in the event of a job being available within the group” (Cass. Soc, January 28, 2015,13-23.440).
Put another way, a redeployment offer made as part of a process involving an a posteriori verification of the suitability of the employee’s profile for the redeployment position is not a valid offer. The employer is supposed to have checked before making the offer that the edeployment position is compatible with the employee’s skills, even if the position is located in another group company.
However, if more than one employee accepts the redeployment position, a tie-breaking interview may be scheduled.
The interview must, however, establish the objective criteria used to select the successful candidate, in accordance with a previous decision of February 14, 2024 (no. 23-12.092), in which the Cour de cassation stated that “in the event of multiple applications for the same redeployment position offered to several employees, the employer’s performance in good faith of its redeployment obligation, if challenged, presupposes that it can justify the objective reasons which led it to refuse to redeploy the employee concerned to the vacant position”.