Can the professional interview and the appraisal interview be held on the same day?

Cass. soc. 5 July 2023, no. 21-24.122

In a ruling handed down on 5 July 2023, the Court of Cassation ruled on the provisions applicable to the professional interview, specifying that the employer could organise it and the appraisal interview on the same day insofar as there was no legal text to the contrary.

However, it does stipulate that appraisal issues should not be raised during this professional interview.

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1. The facts of the case

In this case, staff representatives and a trade union enjoined the company “to organise the professional interviews provided for in Article L. 6315-1 of the Labour Code on a date separate from the annual appraisal interviews“.

In this case, the employer had invited several employees to attend their professional interview and their appraisal interview “in succession” or “on the same day”.

In support of their claim, they argued that, since the performance review was not intended to assess the employee’s work, it had to be separate from the review of the employee’s work performance, which prevented the employer from summoning the employee to attend the performance review following, or on the same day as, the performance review.

The Versailles Court of Appeal ruled against them, stating that the applicable legal provisions and case law did not require these interviews to be held on different dates. The only obligation was to draw up two separate reports, which was the case within the company.

The Court of Cassation followed the reasoning of the lower courts, holding that “it follows that this text [Article L. 6315-1 of the Labour Code] does not preclude the appraisal interview and the professional interview from being held on the same date, provided that appraisal issues are not raised during the professional interview. The Court of Appeal rightly held that the legal provisions did not require these interviews to be held on different dates“.

2. Organising two separate interviews

In view of their purpose, the professional interview and the annual interview should be organised separately.

As a reminder, Article L.6315-1 of the French Labour Code, as it stood prior to Law 2018-771 of 5 September 2018, states that employees are entitled to a professional interview every 2 years, assessed from date to date. The latter must be devoted to career development prospects, particularly in terms of qualifications and employment. It also includes information on validation of acquired experience, activation of the personal training account (CPF), employer contributions to this account and career development advice.

It should also be noted that the legislator has expressly stated that This interview should not cover the evaluation of the employee’s work. This is an important clarification: the professional interview should therefore only be a discussion about the employee’s potential and not about the employee’s work as such.

For its part, and as its name suggests, the appraisal interview is used to evaluate the employee’s work, generally by discussing and measuring his or her performance over a period and possibly setting professional objectives for the future. That said, it is not legally binding, unless provided for in a collective agreement (Cass. soc., 10 November 2009, no. 08-42.114). In principle, it is an annual report, but it may be shorter.

Finally, it should be remembered that this interview should also provide an opportunity to discuss the employee’s workload. The Court of Cassation recently ruled that an employer who fails to provide evidence that annual interviews have been held to discuss the employee’s workload and how it fits in with his personal life is in breach of his safety obligation (Cass. Soc., 3 April 2023, no. 21-20.043).

Ultimately, the Court of Cassation took the opportunity to reiterate the employer’s obligation to organise the professional interview and the annual interview separately, given their purpose, which means that it is not possible to organise a single interview.

These two interviews must therefore be conducted separately, although they may be held on the same day.

3. Professional and appraisal interviews can be held on the same day

For the first time, therefore, the Cour de cassation expressly validates the possibility of organising the professional interview and the appraisal interview on the same date.

We welcome this flexibility provided by the High Magistrates, as the organisation of these two interviews can be time-consuming for companies. The latter is often a source of difficulties, particularly given the relatively long time needed for these exchanges and the availability of managers on the one hand and employees on the other.

There is also the purely practical question of how to organise these interviews.

It should be noted that, unlike the Court of Appeal, the Court of Cassation does not formally require that two separate minutes be kept.

However, we feel that it is more than advisable to systematically draw up two separate reports, so as to be able to demonstrate that they have indeed been separate and that the professional interview does not deal with the employee’s assessment at any point.

We recommend using separate forms and having the employee sign each report separately. A single form with separate sections could give rise to disputes, and in our view should not be used.

This is all the more true because if the employer is unable to demonstrate that professional interviews have been held every two years, it could be required to top up the personal training account of the employees concerned for failing to meet its obligations.

As far as the actual conduct of these interviews is concerned, it should be noted that the French Labour Code does not lay down any specific arrangements for organising the professional interview. In this context, there is nothing to prevent them being carried out by videoconference, provided that the professional interview “complies with the conditions set out in Article L. 6315-1 of the French Labour Code, and in particular that it gives rise to the drafting of a document, a copy of which is given to the employee”. (L’entretien professionnel, Questions-réponses no. 8, updated 30 September 2022).

Lastly, it should be noted that this decision was handed down on the basis of legal provisions prior to the 2018 Professional Future Act. However, the changes that have been made since then do not seem to us to call into question the principle laid down by this judgment, given the current wording of the aforementioned legal provisions. In our opinion, it is therefore possible to transpose this decision to the current situation.