In a ruling dated 8 January 2025 (French Supreme Court, 8 January 2025, No. 22-24.724), the French Supreme Court confirms that in the context of a redundancy, an employer who sends a collective list of available redeployment positions must explicitly communicate the selection criteria to be applied in the event of multiple applications.
Failure to do so constitutes a breach of the employer’s redeployment obligation, with the consequence that the redundancy is considered unfair and lacking a genuine and serious cause.
Article L.1233-4 of the French Labour Code, as amended by the Macron Ordinance of 22 September 2017, allows employers to collectively send redeployment offers as an alternative to sending individual proposals.
However, this collective communication method is strictly regulated by Article D.1233-2-1 of the same code, which requires that the lists include essential information, such as:
- The title and description of the positions.
- The location, remuneration, and classification.
- The application deadline (at least 15 clear days, unless an exception applies).
- The criteria for selecting between employees applying for the same position.
In this case, the employer had failed to specify the selection criteria in the list communicated.
Contrary to the opinion of the Advocate General and the employer’s appeal, which argued that this was merely a procedural irregularity, the French Supreme Court ruled that the absence of selection criteria constituted a substantial breach of the employer’s redeployment obligation.
According to the ruling, such an omission undermines employees’ ability to assess the offers in an informed manner, thereby compromising the fairness of the process and ultimately rendering the redundancy unfair and lacking a genuine and serious cause.
This decision confirms that selection criteria are not a mere formal requirement but a fundamental requirement to ensure equal treatment and prevent arbitrary decision-making in the redeployment process.
As a result, this ruling places a heightened duty of care on employers when drafting and communicating collective redeployment offers, failing which they may be held liable.