Redeployment obligation : beware of the legal pitfalls!

An employee may only be dismissed for economic reasons “when all efforts at training and adaptation have been made and when the person concerned cannot be redeployed onto jobs available in France with the employer company or other companies of the group to which the company belongs and whose organization, activities or place of operation allow for the transfer of all or part of the employees” (French Labor Code, art.. L. 1233-4).

This redeployment obligation applies to the employer regardless of the size of the company and/or the number of employees impacted by the redundancy.

Under the terms of article L. 1233-3 of the French Labor Code, economic dismissals may inter alia be based on “a modification of an essential element of the employment contract which the employee has refused“. The grounds for dismissal are then not the employee’s refusal to modify his or her employment contract but the economic reasons on which the employer’s contractual change offer is based.

Even when the employee refuses a contractual change, the employer remains bound by a redeployment obligation. The employer is even required to offer the employee as a redeployment opportunity the position which had been offered and refused as a contractual modification. This is the established position of the French Supreme Court (Cass. soc., 25 Nov. 2009, n° 08-42.755, Cass. soc., 4 May 2017, n° 15-24.398).

This is what the French Supreme Court again confirmed in a decision of May 18, 2022 (Cass. soc. 18 May 2022 n° 20-14.998). In this case, an employee had refused a geographical mobility (by expressly informing the employer of her refusal of any mobility) and claimed that her employer had been unfair in proposing again the job she had refused during the initial contractual change procedure . The Court dismissed the claim of disloyalty in the performance of the redeployment obligation.