Hiring an employee who does not have a work permit can happen without even being aware of it. So, the company may have relied on a residence permit that proves to be false or belongs to another person. Less obvious, an employee may slip under the radar because they were initially hired by a subsidiary in another European country and were then transferred to France. However, contrary to popular belief, a work permit that is valid in Spain or Italy, for example, is not valid in France.
Here are 3 tips on how to guard against this type of risk and extricate yourself from such a situation.
Remember this only concerns nationals from countries outside the European Union, the European Economic Area, Switzerland and, since 2021, British citizens.
1 – Verify the residence permit at the Prefecture: an essential prerequisite.
Verification prior to the appointment is a Must in order to avoid the alarming situation of discovering that the trilingual employee, who graduated from the best European universities and who has seamlessly integrated the team, has never had a valid permit for working in France and that their presence within the company exposes the director to significant criminal liability!
In practice, authentication is carried out before the effective hiring date at the Prefecture for the place of employment. If the Prefecture does not send a reply within two working days, the employer’s obligation is considered to have been met (Labour Code, Article R.5221-42). By way of exception, this verification is not necessary if the candidate is registered as a jobseeker, or is a temporary worker and the temp agency has ensured that the worker has authorization to work.
2 – Make recruitment conditional upon being in possession of valid authorization to work.
As a precautionary measure, the employment contract or job offer letter should state that the appointment is made subject to being in possession of valid residence and work permits. The contract will also require the employee to inform the company of any change that may affect these residence and work permits.
3 – Promptly end the work relationship if you have your back to the wall.
If you discover that the employee no longer has, or has never had, authorization to work, you should immediately cut ties, not by citing a fault (in the absence of any fraud, the simple fact of being in an illegal situation does not equate with being at fault; Court of Cassation, labour division, 23 November 2022, n° 21-12.125) but by citing the absence of a work permit. You are required to do so by law (Labour Code, Article L.8251-1).
Strictly speaking, it’s not a dismissal as the dismissal procedure is not applicable (so the pre-dismissal interview is not obligatory) and the grounds for termination (namely the employee’s illegal situation) are ironclad: you will never be found guilty of dismissal without real and serious cause (Court of Cassation, labour division, 4 July 2012, n° 11-18.840), even if you did not verify the authenticity of the work permit (Court of Cassation, labour division, 8 December 2009, n° 08-42.100). No protective measure holds up against this situation, not even protection for expectant mothers or protection granted to personnel representatives. Finally, you do not have to provide a P45 (termination of employment certificate) as the employee is not eligible for France Travail unemployment services.
But, be warned! The fact of not having verified authenticity of the work permit may be prejudicial to you should the employee have committed fraud in order to be hired, for example by providing a third-party’s work permit. Indeed, the absence of verification prevents you from relying on serious misconduct, which would deprive the employee of the right to receive severance indemnities and the fixed, three-month indemnity due in the event of contractual termination of an undocumented employee (Court of Cassation, labour division, 18 February 2014, n° 12-19.214). So these indemnities will still have to be paid.