Case law
According to a well-established case law, gross misconduct is defined as any act attributable to the employee that constitutes a breach of the obligations arising from their employment contract or position, of such importance that it “makes it impossible” for the employee to stay, even during the notice period.
The gross misconduct must be so serious that the employer has no choice but to dismiss the employee quickly, so as not to hinder the smooth running of the business.
For example, an employee’s dismissal for gross misconduct almost 2 months after the facts became known is considered late. The dismissal should thus be reclassified as a dismissal for simple misconduct (Cass. Soc., 22 January 2020, no. 18-18.530).
In a ruling dated March 20, 2024, the French Supreme Court provided further clarification on the meaning of gross misconduct.
The facts
In this case, an employee committed misconduct on March 1, 2019, of which the employer became aware on the same day. The employer summoned him to a preliminary interview on March 26, 2019. The employer subsequently decided to dismiss the employee for gross misconduct.
The employee challenged the seriousness of the misconduct before the Employment Tribunal.
The Court of Appeal upheld the employee’s claims, ruling that the employer could not justify the length of the period between his having knowledge of the facts and his inviting the employee to the preliminary meeting. This made the misconduct no longer serious enough to be qualified as “gross misconduct”.
The Supreme Court’s decision
The Supreme Court confirmed that “gross misconduct being that which makes it impossible for the employee to remain in the company, the termination of the employment contract must take place within a limited period of time after the employer has become aware of the alleged facts, provided that no verification is necessary“.
In the event of gross misconduct, speed is therefore of the essence.