The stages in the individual dismissal procedure are as follows:
- The employee is formally invited to a preliminary meeting.
- At least five business days after the formal invitation, a preliminary meeting is held during which the employer explains the reasons for the contemplated dismissal and listens to the employee’s explanation.
- The employee may be assisted by a third party (an employee of the company or an adviser of the employee mentioned on an official list prepared by the Prefect, depending on the existence of employee representative bodies in the company).
- The dismissal letter must be sent to the employee at least two (or seven for a dismissal due to economic reasons) business days after the meeting (and within a month for a disciplinary dismissal).
The dismissal letter must be a registered letter whose receipt must be acknowledged by the employee, signed by either a legal representative of the firm or a person duly empowered by a legal representative, and who must belong to the company.
Applicable collective bargaining agreements can provide for a more favourable timeframe and / or procedure.
The letter must explicitly mention the grounds for dismissal. There are other mandatory provisions such as the possibility of choosing to benefit temporarily the supplementary health care scheme in force in the company, etc.
The grounds set out in the dismissal letter may be specified by the employer or at the employee’s request after the letter has been sent. If the employee does not make such a request, the letter’s lack of an adequate explanation will not in itself support a finding that the dismissal lacks real and serious cause, but will merely entitle the employee to compensation of no more than one month’s salary.
A special procedure (possible involvement of the works council, see below,
meeting and notification of the dismissal) applies in the case of a dismissal for economic reasons or when the dismissal concerns a ‘protected employee’ (e.g. members of the social and economic council, and trade union delegates notably).
A specific procedure prior to the dismissal exists for employees who have been recognised as physically incapable of performing their work by a labour doctor (redeployment obligation, possible involvement of the social and economic council, etc.).
For a dismissal based on a disciplinary reason, the employer should move rapidly as the procedure must begin within a few weeks of the employer becoming aware of the reason for dismissal and no more than two months after the discovery of the facts.
Both disciplinary and objective dismissals require certain formalities.
Disciplinary dismissals require written notification to the employee detailing:
- the facts and type of misconduct upon which the dismissal is based, and
- the effective date of termination.
The applicable Collective Bargaining Agreement may establish additional formal requirements. Likewise, there may be additional requirements depending on the type of employee affected. For instance, Spanish Law also sets forth the obligation to initiate contradictory proceedings in relation to dismissals affecting the employees’ legal representatives.
Objective dismissals include the following requirements:
- Delivering a written notification or dismissal letter to the employee describing in detail the objective reasons upon which the termination is based, as well as the effective date of termination of the employment contract,
- Granting 15 calendar days’ notice (which may be substituted by the payment of salaries in lieu),
- Paying the legal severance of 20 days’ salary per year of service, capped at 12 months’ salary when communicating the dismissal, and
- Delivering a copy of the dismissal letter to the employees’ representatives.