Dramatic shift with a judgment of September 24 2008 No

In the legislation on the termination economic, the so-called "order of redundancies", that is the way it selects those of employees who are laid off, it is the ink bottle. What is the principle When one deletes a post, is not necessarily the incumbent of this position must be dismissed. Unless the agreement or a collective agreement does the problem, the employer submits to the Committee selection criteria which it has chosen. It is, of course, not the hands-free: the criteria take into account "including" family, and in particular those of single parents, the situation of the employees whose "social characteristics" make reintegration difficult (employees aged, disabled...), the seniority of service, the professional qualifications (v.., art.) L. 1233-5). These criteria can be taken into account of unevenly, but all must be considered. If the employee actually requested, the employer must indicate in writing what are these criteria and how they are weighted (v.., art.) L. 1233-17).

What is the penalty incurred when the employer neglects his duties It could take the following reasoning: the employer had, of course, economic grounds for dismissal, but by not selecting the right person, he did lose his reason its real and serious nature and the sanction is therefore the compensation due for wrongful dismissal. This is not the interpretation by the Court of cassation. It considers that the violation of legal rules (defined or not respected criteria) is not translated a dismissal without real and serious cause (Cass. Soc., 6 oct 2004., 2 Feb 2006), but that the employee must be compensated for the damage suffered. This was to compensate for the employee, the unjustified loss of his job, damage must be repaired full and not by the allocation of a token amount (Cass. Soc.,. 6 July 1999). This rule of repair is that where the economic basis was recognized as a real and serious: if it is not, the compensation awarded to the employee includes the lack of compliance with the order of dismissal. It only has two benefits. What happens now when all the rules have been observed except one: the obligation to respond within ten days to the letter of an employee who asks what are the criteria of the order of dismissal

Change of course

So far, the Court of cassation considered that it was only a procedural irregularity, defect which, inevitably, resulted in harm. It was for the judge to assess the extent and to assess the repair to allocate (Cass. Soc.,. 20 Jan 1998). But, again, ask to cumulate this allowance with that due in case of dismissal without real and serious cause. Dramatic shift with a judgment of September 24, 2008 (No. 07 - 42 200). The Court of cassation considers now that "the failure of the employer, who delivered a dismissal for economic reason, its duty to inform the employee that requested the criteria pursuant to article l. 321-1-1 now article l. 1233-5 of the Labour Code, cause necessarily to the employee a separate damage repairing the absence of real and serious cause". In the current state of jurisprudence, it is therefore a paradox: the employer who has not defined or has not respected the rules relating to the order of dismissal, major breach, not is convicted to compensation only if the dismissal is, moreover, held without real and serious cause. On the other hand, those which, while following the guidelines of the Act in the matter, only neglected to inform the employee, minor breach, has two convictions.

How can we explain this apparent injustice Simply considering the judgment of 24 September as annunciator of an another shift. Can be assumed that, as soon as it will have the opportunity, the Court of cassation decides that compliance with the provisions relating to the order of the redundancies is a duty that must be separated from that to justify real and termination pattern and will devote the principle of double repair double breach.