Never inform an employee by telephone of his or her dismissal on the day the letter of dismissal is sent.

In a ruling handed down on April 3, 2024 (Cour de cassation, civil, Social Division, April 3, 2024, 23-10.931), the French Supreme Court once again illustrates the concept of “verbal dismissal”.  

1/ Written notification of dismissal: an essential formality If it follows from article L. 1232-6 of the French Labor Code that “when the employer decides to dismiss an employee, he notifies him of his decision by registered letter with acknowledgement of receipt”the Cour de cassation has nevertheless confirmed on several occasions that “sending the registered letter with acknowledgement of receipt referred to in article L. 1232-6 of the French Labor Code is merely a legal means of preventing any dispute over the date of notification of dismissal”. (Cass. soc., June 16, 2009, no. 08-40.722; Cass. soc., May 31, 2017, no. 16-12.531). In fact, the employer is perfectly entitled to use another method of sending the letter of dismissal, without this in itself constituting a procedural irregularity that would render the dismissal without real or serious cause. The Cour de cassation has thus validated the delivery of the letter of dismissal:

• By bailiff’s writ (Cass. soc. February 20, 1986 no. 82-43.825)
• Hand-delivered against a signed receipt (Cass. soc., Dec. 15, 1999, no. 97-44.431; Cass. soc., June 16, 2009, no. 08-40.722)
• Hand-delivered without discharge, proof of notification being able to be provided by any means, including testimony (Cass. soc. Sept. 29, 2014 no. 12-26.932)

In practice, however, it is preferable to opt for a means of establishing that the dismissal was indeed notified in writing, and the date on which it took place, since the date of termination is the date on which the employer expressed his wish to end it (in principle, on the day of dispatch of the registered letter with acknowledgement of receipt). In addition, note that only a registered letter or a bailiff’s writ can be used to reach a safe compromise.   2/ Verbal dismissal: a procedure to be avoided Verbal notification of dismissal, on the other hand, is not authorized (Cass. soc. Jan. 30, 2007 n° 05-41749), since it does not meet the condition of stating the reasons imposed by article L. 1232-6 paragraph 2 of the Labor Code. As a result, the French Supreme Court has ruled that a verbal dismissal is devoid of real and serious cause. This is how it stands:

• The employer who verbally dismissed the employee before summoning her to the preliminary interview (Cass. soc. Oct. 29, 1996 no. 93-44.245; Cass. soc. Feb. 17, 2004 no. 01-45.659).
• An employer who informs an employee at the end of the preliminary interview of his final decision to dismiss him, as this irregularity cannot be remedied by sending a letter of dismissal at the end of the statutory period (Cass. soc. Nov. 15, 1990 no. 88-42.261; Cass. soc. June 22, 1993 no. 90-46.039).
• The employer who, during the first preliminary interview, invites the employee to take back his personal belongings and return the keys (Cass. soc. Dec. 12, 2001 no. 99-41219).

In this respect, it should be noted that when the dismissal is verbal, the employer cannot regularize the procedure at a later date by sending a letter after the fact (Cass. soc. March 9, 2011, no. 09-65441).

3/ What about a call made by a HR department to inform the employee of his dismissal on the same day as the letter of dismissal is sent? In its ruling of April 3, 2024, the Cour de cassation confirms its case law on the subject. In this case, the employer had notified the employee of his dismissal by registered letter posted on February 7, 2019, as evidenced by the acknowledgement of receipt filed with the court. The employee, for his part, claimed to have been verbally dismissed on February 7, as the Human Resources Director had called him on the telephone to inform him of the termination, even before the letter had been sent. The Reims Court of Appeal ruled that the dismissal had no real or serious cause, noting that :

• The employee provided proof that he had been verbally informed of his dismissal during a telephone conversation with the company’s HR department;
• The employer, on the other hand, argued that “it was appropriate for the company to notify the employee of his dismissal by telephone on the same day as the letter of dismissal was sent, so that he would not have to attend a meeting and be dismissed in front of his colleagues”.

The Court of Cassation upheld the lower court’s assessment that this telephone call could not replace the subsequent letter of dismissal, even if it had been sent on the same day, under the signature of the caller. Hopefully, the decision would have been different, and the dismissal upheld, if the employer had been able to demonstrate that the letter of dismissal had been mailed before the telephone call of the same day, the date of termination being the day on which the employer expressed his wish to terminate the employment contract. In practice, however, such proof would seem to have been difficult to produce, unless it were possible to obtain a certificate from a La Poste employee, in addition to a screenshot of the HR department’s call log, if the call had been made via a telephone that allowed the call history to be traced… Moral of the story : it’s best to refrain from any verbal communication with the employee on the day the letter of dismissal is sent, in order to avoid any risk of disclosure and, de facto, any risk of the dismissal being deemed without real or serious cause. It should be noted, however, that while oral notification of dismissal is prohibited before the letter is sent, this is not the case if it takes place after but before the employee receives the letter. Indeed, it has been ruled that there is no verbal dismissal when the employer has sent the letter before verbally informing the employee. In this case, the dismissal is deemed to have been notified in writing, even if the employee receives the letter after this announcement (Cass. soc. May 6, 2009, no. 08-40395). In this case, the registered letter was sent on October 28. The employee, who had not yet received it, went to work on October 30 and met a manager who told him to go home. This was enough to purge the situation of any defect.   There’s one more important point in our case, and I’m sure it hasn’t escaped your notice. The employer’s defence on appeal was as follows: “even if the Court of Appeal considered that the employer had informed the employee by telephone of his dismissal before sending the letter of dismissal, it did not at any time specify the evidence on which it based this chronology, even though the employee, on whom the burden of proof rested, did not submit any evidence to the debates to establish that, on February 7, 2019, the employer had called him to inform him of the termination before mailing the letter of dismissal”. Indeed, it is assumed that it is not possible to inform an employee by telephone of the termination of his or her contract on the same day that the relevant letter is sent. But in practice… how do you prove the content of the call? The Cour de cassation (French Supreme Court) easily answered this question, as mentioned above: “The Court of Appeal first noted that the employee had provided evidence that he had been informed verbally of his dismissal, during a telephone conversation with the company’s Human Resources Director, while the employer argued that it was appropriate for the company to inform the employee of his dismissal by telephone on the same day as the letter of dismissal was sent, in order to avoid him having to attend a meeting and be dismissed in front of his work colleagues.” That says it all. In other words, the employer committed a double fault by admitting to having provided this information. Otherwise, it would seem peculiar, to say the least, for a court to consider that a telephone contact was sufficient to deem that it automatically concerned dismissal. Such an interpretation would be hazardous and subjective, to say the least. With Roland Garros just around the corner, we dare to conclude: game, set and match.