Mistakes in the workplace

Any breach of discipline constitutes misconduct which may result in a sanction proportionate to the seriousness or repeated nature of the misconduct.

The seriousness of an offence is assessed on the basis of the circumstances in which it was committed and the nature of the duties performed by the employee at fault.

The offence is considered all the more serious if it jeopardises the employer’s interests.

Disciplinary offences

There are three types of misconduct characterised by an employee’s failure to fulfil an obligation:

1. Minor misconduct,
2. Serious misconduct,
3. Gross misconduct.

It is up to the employer to determine the seriousness of the misconduct without classifying it.

Minor misconduct

Minor misconduct is divided into two types

• Minor misconduct, which does not justify termination of the employment contract but does warrant disciplinary action,
• Serious misconduct, which may warrant termination of the contract in certain circumstances, particularly where it is repeated.

The employee retains the right to statutory severance pay.

Serious misconduct

This precludes the employee from remaining with the company. The existence of serious misconduct must lead the employer to answer ‘no’ to the following question: ‘Can we allow the employee to serve out their notice period?’

An employer wishing to dismiss an employee for serious misconduct must immediately suspend the employee pending further action: otherwise, the employer could be criticised by the court for failing to establish that the misconduct was serious enough,

Similarly, an employer wishing to dismiss an employee for serious misconduct cannot grant a notice period, as this risks the misconduct being reclassified.

In the event of dismissal for serious misconduct, the employee is entitled to their acquired rights and dismissal rights, as applicable.

Gross misconduct

This is committed by the employee with the intention of harming the employer or the business. It results in the loss of all compensation,

It also provides grounds for bringing a claim against the employee for damages.

Even acquired rights (with the exception of the certificate of employment) may be withheld pending the final court decision.

Constituent elements of misconduct

• Bringing alcoholic drinks onto the workplace or consuming them there,
• Bringing toxic or prohibited substances onto the premises,
• Entering or remaining on the premises whilst intoxicated,
• Refusing to work overtime or carry out assignments,
• Sleeping at the workplace,
• Spending time on activities unrelated to work,
• Using company equipment for personal purposes without authorisation,
• Committing, allowing or inciting any act likely to disrupt the working environment,
• Carrying out, without authorisation, other work that is detrimental to the purpose of one’s employment,
• Smoking outside the area explicitly designated by the employer.

Assessment of serious misconduct

To be considered serious, the misconduct must be of such a nature that it makes it impossible for the employee to remain with the company, even during the notice period.

The degree of seriousness of the misconduct must be assessed on a case-by-case basis. Indeed, the same behaviour may be regarded, depending on the circumstances, the individuals involved, etc., as minor misconduct or serious misconduct.

You must therefore take into account not only the nature of the misconduct itself, but also the employee:

• Did they commit the misconduct intentionally or unintentionally?
• Have they previously been disciplined for similar incidents?
• Could their lack of experience, if any, explain the misconduct, at least in part?
• Their length of service with the company may also help to put the seriousness of the misconduct into perspective, etc.

It is up to you to assess whether the misconduct is serious and whether the employee should leave the company.

Conversely, if you consider that the employee can remain in their post, do not proceed on the grounds of serious misconduct.

In the event of a dispute – for example, if the employee considers that they have committed a minor offence – it is the judge who will assess the degree of seriousness based on the circumstances. It is up to you to prove that serious misconduct has taken place, i.e. to prove that the misconduct is such that it warrants the employee’s immediate dismissal without notice.

Serious misconduct: dismiss the employee promptly

If the misconduct is such that it prevents the employee from continuing to work for the company, you must initiate the procedure for dismissal on grounds of serious misconduct without delay.

During the course of these disciplinary proceedings, you may:

• Either decide to place the employee on suspension pending further action. This measure, which is not mandatory, is not a disciplinary sanction. It allows you to temporarily suspend the offending employee’s duties pending their dismissal. The suspension may be notified verbally and then confirmed in writing, for example in the letter summoning the employee to the preliminary hearing;
• Or keep the employee in post, provided that you proceed with their dismissal promptly. The courts consider that the employer must be allowed sufficient time (in this case, a few days) to carry out the dismissal procedure.

Suspension pending disciplinary proceedings is strongly recommended, but it does not in itself guarantee that the misconduct will be classified as serious. The fact that you have implemented it does not mean that the judge will accept that the misconduct is serious.

Do not allow the employee to work out their notice period

If you allege serious misconduct, this means that the employee must not remain with the company even during their notice period.

If you allow the employee to work out their notice period, the judge will not be able to uphold the serious nature of the misconduct. The judge will, in fact, consider that the facts were not so serious, since the contract was maintained.

However, there is nothing to prevent you from paying compensation in lieu of notice, provided the employee no longer attends their place of work. This will not call into question the serious nature of the misconduct.

Personal delivery of the dismissal letter to the employee

When an employer decides to dismiss an employee, the notice of dismissal must be served by registered post with acknowledgement of receipt (LRAR).

It may not be sent less than two working days after the scheduled date of the pre-dismissal meeting to which the employee was summoned.

Sending this registered letter with acknowledgement of receipt (LRAR) is merely a legal means of preventing any dispute over the date of notification of the dismissal.

Notifying the dismissal by registered post with acknowledgement of receipt (LRAR) does not constitute a substantive formality. In other words, if the dismissal is notified by a letter delivered by hand against a receipt, you will not be ordered to pay compensation to the employee on the grounds of an irregularity in the dismissal procedure.

Hand-delivery against a receipt is possible, but please note: it does not protect you from certain disputes.

If a letter of dismissal is delivered by hand, the dismissed employee may, for example, contest the date on which the dismissal was notified.

In some cases, if you are considering a settlement, this will only be possible if the dismissal is notified by registered post with acknowledgement of receipt (LRAR). Otherwise, no settlement can be reached.

Delivery in person against a receipt is possible, but it is strongly advised to send the notice of dismissal by registered post with acknowledgement of receipt (LRAR) or via a bailiff in the case of the dismissal of senior staff.

An employee’s refusal to accept their letter of dismissal and sign the receipt does not, however, call into question the validity of the dismissal procedure. In the event of a dispute, it will nevertheless be necessary to prove that they refused the letter of dismissal.