Watch out for deadlines! – If new misconduct is discovered during the course of disciplinary proceedings

In a ground-breaking ruling dated February 14, 2024, which follows on from previous decisions to the same effect (Cass. Soc. October 20, 2009, no. 08-42.499; Cass. Soc. March 23, 2022, no. 20-19.963), the French Supreme Court reminds us that if new misconduct is discovered during the course of a disciplinary procedure, the employee must be invited to a new preliminary meeting within one month of the first meeting, if this has already taken place.

By way of introduction, it should be remembered that in disciplinary proceedings :

• the statute of limitations on wrongdoing, an essential rule of disciplinary law, prevents the initiation of proceedings against an employee more than 2 months after the employer has become aware of them (article L. 1332-4 of the French Labor Code).
• the act of initiating proceedings, most often the summons to an interview prior to a possible sanction, interrupts this 2-month period and triggers a new period of one month to notify the decision taken (article L. 1332-2 of the French Labor Code).

To better grasp the significance of this decision, let’s return to the facts of the case.

Following an internal investigation carried out in September 2015, an employer noted that one of its employees – hired as a general practitioner – was regularly addressing her colleagues in a disrespectful, disparaging and aggressive manner, creating a real climate of stress and high anxiety among them.

In addition, the employee only did as she pleased, imposing her rules on her colleagues (changes to internal organization, schedules, etc.) without worrying about the possible consequences.

In accordance with the applicable contractual provisions, the employer had therefore summoned the employee on September 21, 2015 to a pre-interview scheduled for the following October 1.

At the end of the meeting, he summoned her, by hand-delivered letter, to an interview prior to a dismissal measure, set for October 14, 2015, confirming her protective layoff notified verbally on the same day.

At the same time, the CPAM alerted the employer to the false invoices issued by the employee, providing it with all the supporting documents proving that the invoices had been issued.

Given the existence of these new culpable facts, on November 18, 2015, the employer summoned the employee to a new preliminary interview scheduled for the following November 27.

He was finally notified of his dismissal on December 1, 2015.

Believing she had been the victim of moral harassment, the employee referred the matter to the Alès industrial tribunal on December 15, 2015, seeking :

• to declare his dismissal null and void or, at the very least, without real and serious cause;
• order the employer to pay him several sums in respect of wages and compensation.

In a judgment handed down on December 14, 2018, the Labor Court ruled that the dismissal for gross misconduct was well-founded and dismissed the employee’s claims in their entirety.

On appeal, the Nîmes Court of Appeal upheld the judgment after noting that :

• the facts set out by the appellant – as established – do not allow the existence of moral harassment to be presumed;
• the dismissal is justified by serious misconduct and cannot therefore be challenged.

Dismissed on two occasions, the employee appealed to the French Supreme Court (Cour de cassation):

» that no sanction, including disciplinary dismissal, may take place more than one month after the date set for the interview prior to the sanction, the postponement of the interview date resulting from the employer’s sole initiative not giving rise to a new deadline for notifying disciplinary dismissal.

Thus, while the employer may summon the employee to a new preliminary meeting if new misconduct is revealed after the preliminary meeting, so that the one-month time limit for notifying the penalty runs from the date of this last meeting, it is on condition that the employer has sent the employee the summons to this second disciplinary meeting within the one-month time limit from the first meeting.

In the present case, the second notice to attend a preliminary interview (i.e. that of November 18, 2015) – sent more than a month after the date of the first interview held on October 1, 2015 and the first preliminary interview held on October 14, 2015 – was therefore late; this did not extend the starting point of the one-month period provided for in article L. 1332- 2 of the French Labor Code.

The dismissal was therefore pronounced after the expiry of the one-month time limit for pronouncing the sanction, in violation of the aforementioned provision. The Court of Appeal was therefore wrong to consider that the dismissal for serious misconduct had been validly notified within one month of the second interview necessitated by the discovery of new facts.

» that the one-month time limit stipulated in article L. 1332-2 of the French Labor Code for notifying the chosen sanction is a basic rule, and that the expiry of this time limit prohibits the employer both from summoning the employee to a new preliminary interview for the same facts and from disciplining these facts, unless in the meantime a procedure imposed by a conventional provision has been implemented.

Thus, if the employer abandons an initial disciplinary procedure in order to punish facts that were brought to his attention after the preliminary interview, the invitation to the new preliminary interview need not take place within a specific timeframe in relation to the procedure abandoned, although the dismissal may only punish facts that are different from those initially envisaged.

The employee therefore felt that the Court of Appeal had failed to investigate whether the only misconduct it considered to have been established, i.e. the grievance relating to the employee’s behavior towards her colleagues, was not the only grievance initially considered in the first disciplinary procedure, or even the second, which had not given rise to any sanction within the one-month period following the preliminary interview.

The High Court approved the employee’s reasoning and recalled:

• article L. 1332-2 of the French Labor Code stipulates that disciplinary dismissal must take place within one month of the date of the preliminary interview, but above all that expiry of this time limit prohibits the employer from summoning the employee to a new preliminary interview for the same facts.
• that – and here lies the contribution of this ruling – when, due to the revelation of new culpable facts subsequent to this preliminary interview, the employer sends the employee, within one month of the first interview, a notice to attend a new preliminary interview, it is from the date of the latter that the one-month time limit for notifying the sanction begins to run.

In the light of these principles and the facts of the case, the Cour de cassation ultimately ruled that the employer could only deal with the new facts of false invoicing discovered during the course of the procedure, given that the invitation to the second preliminary meeting came more than a month after the first preliminary meeting.

Given the lateness of this notice, the employer could no longer, as he did, base the dismissal measure on the employee’s attitude of disparagement towards her colleagues, a grievance that had been the subject of the first preliminary interview.

We can only regret this position taken by the Cour de cassation, which only adds further complexity to a disciplinary procedure that is already highly regulated by the Labor Code.

In any case, if you become aware of new misconduct during the course of the disciplinary procedure, you should either :

» In this way, we are able to “mass-market” the initial wrongdoing and any subsequent discoveries. In this case, the employee must be summoned to a new preliminary interview within one month of the first preliminary interview;

» to abandon the initial procedure and initiate a new one based solely on the wrongful acts discovered at a later stage. As this new procedure is totally independent of the first, it will not be necessary to respect the one-month time limit between the first preliminary interview and the new summons.

These are guidelines that can be adapted to suit specific situations.