The letter of dismissal is the cornerstone of litigation surrounding the termination of an employment contract. So when a recently-dismissed employee asks for clarification regarding the grounds for his dismissal, this should ring the alarm bell and prompt you to cast a critical eye over the dismissal letter that you’ve just sent (Employment Code, Article L.1235-2).
Indeed, there can only be one aim behind this request: scuppering the dismissal without having to examine the substance of the case.
If you think that the letter enables the employee to understand the reasons for his ouster and that it is sufficiently detailed, the request for clarification will not call for any specific response.
However, if you realize (quickly, that is within 15 days after receiving the employee’s request) that certain mandatory statements were omitted, all is not lost! The law offers you a second chance: the possibility of providing the missing information.
This chance for redemption is only available to the employer if there are already minimum details in the dismissal letter. The usual suspects such as “lack of motivation”, “unacceptable behaviour” and even “interpersonal difficulties” are the bare bones of the statement of reasons and are not destined for recovery.
This procedure is of real interest when certain information must appear in the dismissal letter, which is the case for dismissal on economic grounds or for incapacity, for example.
So, if you have mentioned economic difficulties without explaining that the employee’s job has been cut, you will be able to provide this detail (Toulouse CA, 24 February 2023, court docket number RG 21/04119; Court of Cassation, labour division, 5 April 2023, n° 21-18.636). If you have mentioned the notification of incapacity without further stating that there was no possibility of redeploying the employee, you will also be able to set things right (Toulouse CA, 3 February 2023, court docket number RG 21/03552; Caen CA 5 January 2023, court docket number RG 21/01747).
If you don’t, the omission of a couple of words (“elimination of position” in the case of dismissal on economic grounds, “impossibility of redeployment” in the event of incapacity, “need for a permanent replacement” in the event of absence disrupting the company, “impossibility of remaining in the position” in the event of dismissal of an employee affected by a workplace accident, etc.) will suffice in stripping the dismissal of real and serious cause. The circumstances warranting the dismissal, however sound they may be, will count for nothing.
Even if you provide the missing detail, victory is far from a foregone conclusion. You will have effectively closed the door on an “easy” objection (contested on a technicality, aka a procedural defect), which is indeed a battle won. However, the reality of the facts cited in the letter of dismissal must be explained (proof provided of the economic difficulties, professional inadequacy, faults committed, etc.) and the judges must be convinced that you had no choice other than to terminate the employment contract.
As for the employee, he must keep his fingers crossed in the hope that his former employers, unaware of the complexity of certain reasons for dismissal, do not realise their error or are too slow to respond!