This newsletter summarizes four significant judicial decisions over recent months:

• Renewal of the probationary period: using a set of indicators to qualify consent (Cass. soc., 25 January 2023, n°21-13.699)

To renew a probationary period, the employer must obtain the employee's agreement.

Can this agreement be deduced from the employee's signature on the renewal proposal letter?

The French Supreme Court answers in the affirmative but on condition that the signature is accompanied by a set of indicators suggesting consent. In this case, these were emails sent by the employee to third parties, in which he stated that his "probationary period within the company had been extended" and that he was looking for a job.

Thus, the probationary period was properly renewed, and the employee's request to classify the termination of the employment relationship as an unfair dismissal was dismissed.

• Redundancy: the deterioration of gross operating surplus can, by itself, characterize economic difficulties (Cass. soc., 1 February 2023, n°20-19.661)

To proceed with a redundancy, the decision must be justified by an economic situation such as economic difficulties, technological changes, a reorganization of the company necessary to safeguard its competitiveness, or the cessation of the company's activity (Article L.1233-3 of the Labor Code).

Regarding economic difficulties, the same article specifies that they can be characterized either by the significant evolution of at least one economic indicator such as a decrease in orders or turnover, operating losses, a deterioration of cash flow or gross operating surplus, or by any other element likely to justify these difficulties.

In this case, a redundancy was contested on the grounds that while the company had indeed suffered a deterioration of the gross operating profit, at the same time, its turnover had increased.

The French Supreme Court validated the redundancy, satisfied with the deterioration of the company's gross operating profit alone, provided that this economic indicator is of a serious and lasting character, thus demonstrating a significant evolution in the company’s situation.

• De facto dismissal: beware of communications prior to the dismissal letter (Cass. Soc., 22 March 2023, n°21-21.104, F-D)

An employee was hired by a television channel to host a show. In a press release, the channel removed the employee from its program schedule and announced that the show she had been hosting would be entrusted to another presenter. A few days later, the employee received written notice of her dismissal. She then contested this measure, arguing that she had been subject to a verbal dismissal.

The French Supreme Court accepts her claims and indicates that the dismissal took place on the date of the press release, which clearly and unequivocally expressed the employer's intention to dispense with the employee's services. This dismissal was, therefore, a de facto dismissal, without real and serious cause.

This case demonstrates the importance for the employer of not communicating about the termination of the employee's position or insinuating their replacement before sending the dismissal letter.

• Golden hello: welcome bonuses with clawbacks are valid! (Cass. soc., 11 May 2023, n° 21-25.136, FS-B)

An employment contract provided for the payment of a signing bonus subject to a condition that the employee still be working for them after a certain period. In the event of resignation within 36 months following the start of employment, the employee had to partially return the signing bonus that had been paid to him.

The employee resigned a few weeks after his arrival, and his employer asked him to reimburse part of this bonus. The employee refused, leading his employer to bring the case before the labor court.

The Court of Appeal ruled in favor of the employee, stating that the bonus infringed on the freedom to work by creating an obstacle to resignation.

However, the French Supreme Court overturned the appellate decision and stated that a bonus that is independent of an employee’s remuneration and aimed at retaining employees may be subject to a condition of continued employment after its payment without this constituting an unjustified and disproportionate infringement on his fundamental freedoms.