Dismissal on personal grounds
Dismissal on personal grounds (licenciement pour motif personnel) is the most litigated form of employment contract termination in France. It is based on a reason relating to the employee personally, such as misconduct, poor performance or medical incapacity, and is subject to a strictly regulated procedure. An error of substance or form can turn a justified dismissal into a dismissal without real and serious cause, with significant financial consequences for the employer.
1. Dismissal on personal grounds: definition and legal basis
1.1 – What is a dismissal on personal grounds?
A dismissal on personal grounds is one whose cause is inherent to the employee. It differs from an economic dismissal (licenciement pour motif économique), which rests on reasons external to the individual (economic difficulties, reorganisation, redundancies).
It may be based on:
- Misconduct (minor misconduct, serious misconduct or gross misconduct)
- Professional or performance insufficiency
- Medical incapacity certified by the occupational physician
- Any other real and serious reason relating to the employee personally
1.2 – The fundamental requirement: a real and serious cause
Whatever the stated ground, the dismissal must rest on a real and serious cause (cause réelle et sérieuse), as required by Article L. 1232-1 of the Labour Code.
Definition
Real: the ground must be objective, verifiable and not a mere pretext. Serious: it must be sufficiently grave to justify termination of the contract. Both conditions are cumulative, and the labour tribunal (Conseil de prud’hommes) reviews them systematically.
2. The different personal grounds: misconduct, poor performance, incapacity
2.1 – Misconduct: three levels with different consequences
The distinction between degrees of misconduct is essential, as it determines the employee’s entitlements upon dismissal:
| Type of misconduct | Definition | Consequences for the employee |
|---|---|---|
| Minor misconduct (faute simple) | Breach of professional obligations, not serious enough to justify immediate departure | Entitled to notice period + entitled to severance pay |
| Serious misconduct (faute grave) | Breach making it impossible to keep the employee in the business even during the notice period | Loss of notice period + loss of severance pay |
| Gross misconduct (faute lourde) | Serious misconduct committed with intent to harm the employer | Loss of notice period + loss of severance pay + possible civil liability action |
Important note
The classification of serious or gross misconduct is frequently overturned in litigation. The labour tribunal systematically checks whether the alleged facts genuinely justify that level of classification, and will reclassify as minor misconduct if not, with significant financial consequences for the employer.
2.2 – Professional insufficiency
Professional or performance insufficiency is not a form of misconduct, as it rests on the employee’s inability to fulfil their duties properly. It may justify dismissal provided it is:
- Real and objectively established (specific, undisputable facts)
- Not attributable to the employer (insufficient resources, lack of training, unrealistic targets)
- Sufficiently characterised to constitute a serious cause
This is a particularly contentious area: the boundary between professional insufficiency and disguised harassment is closely scrutinised by the courts.
2.3 – Medical incapacity
Incapacity certified by the occupational physician, whether work-related or not, may found a dismissal, but only if the employer has first explored all possible redeployment options and these prove impossible or are refused by the employee.
The applicable regime differs depending on the origin of the incapacity (workplace accident or occupational illness versus other causes), with specific obligations and compensation rules in each case.
3. The dismissal procedure: key steps
The procedure is mandatory. Any irregularity, even a minor one, may be sanctioned by the labour tribunal.
3.1 – The invitation to a preliminary meeting
The employer must send the employee a written invitation to a preliminary meeting (entretien préalable), by registered letter or delivered by hand against signed receipt (Art. L. 1232-2 of the Labour Code). The letter must state:
- The purpose of the meeting (possible dismissal)
- The date, time and location
- The employee’s right to be accompanied by a representative
A minimum of 5 working days must elapse between the employee’s receipt of the invitation and the holding of the meeting.
3.2 – The preliminary meeting
The meeting gives the employer an opportunity to set out the envisaged grounds and to hear the employee’s explanation. It is not a mere formality: the employee must genuinely have the opportunity to put forward their defence. The decision to dismiss cannot be taken before the meeting has been held.
3.3 – Notification of dismissal
The dismissal letter may only be sent after a minimum reflection period, being at least 2 working days after the meeting (Art. L. 1232-6). The letter must:
- State the grounds in precise and verifiable terms
- Be sent by registered letter with acknowledgement of receipt
- Specify the start date of the notice period
Important note: the dismissal letter defines the scope of any future dispute
The grounds stated in the dismissal letter are binding: the employer cannot rely on new grounds before the labour tribunal. A vague, imprecise or poorly drafted letter significantly weakens the employer’s position in the event of litigation.
3.4 – The notice period and end-of-contract documents
Except in cases of serious or gross misconduct, the employee is entitled to a notice period whose duration depends on their length of service and the applicable collective bargaining agreement. At the end of the contract, the employer must provide:
- The employment certificate (certificat de travail)
- The France Travail (formerly Pôle emploi) attestation for unemployment benefit purposes
- The final pay statement (solde de tout compte)
- The signed receipt for the final pay statement
4. Severance pay: calculation and entitlements
4.1 – The statutory severance payment
In the absence of serious or gross misconduct, any employee with at least 8 months’ service is entitled to a statutory severance payment (Art. L. 1234-9 and R. 1234-1 et seq.). The calculation is as follows:
- 1/4 month’s salary per year of service for the first 10 years
- 1/3 month’s salary per year beyond 10 years
The applicable collective bargaining agreement may provide for more favourable payments, in which case those apply instead of the statutory minimum.
4.2 – The “Macron scale”
Where a dismissal is found to lack real and serious cause, the labour tribunal awards damages governed by the compensation scale set out in Article L. 1235-3 of the Labour Code. This scale sets minimum and maximum amounts expressed in months of gross salary, based on the employee’s length of service and the size of the company.
Key point
The Macron scale does not apply where the dismissal is declared null and void (discrimination, harassment, breach of a fundamental freedom, maternity leave, etc.). In such cases, the employee may obtain a minimum award of 6 months’ salary with no upper cap.
5. Challenging a dismissal: remedies and strategy
5.1 – Bringing a claim before the labour tribunal
The employee has 12 months from notification of the dismissal to bring a claim before the Conseil de prud’hommes (Art. L. 1471-1 of the Labour Code).
The labour tribunal may:
- Find the dismissal without real and serious cause, and award damages under the Macron scale
- Declare the dismissal null and void, with possible reinstatement or a minimum 6-month award outside the scale
- Penalise the employer for a procedural irregularity, with a maximum award of 1 month’s salary
5.2 – Settlement: an alternative to litigation
A settlement agreement (transaction) may be concluded after notification of the dismissal to avoid any dispute. It requires mutual concessions, rigorous drafting and a sound assessment of the litigation risk. If poorly negotiated or drafted, it may be set aside, or may undervalue the employee’s entitlements.
5.3 – Void dismissals: specific cases
Certain dismissals are affected by absolute nullity where they violate a fundamental freedom or a specific protection: discrimination, harassment, maternity or parental leave, exercise of a representative mandate, whistleblowing. In such cases, the ordinary rules of the Macron scale do not apply.
6. Frequently asked questions : Dismissal on personal grounds
Serious misconduct (faute grave) is a breach so grave that it makes it impossible to keep the employee in the business even during the notice period. It results in the loss of the notice period and severance pay, but not unemployment benefit entitlement.
Gross misconduct (faute lourde) additionally requires an intent to harm the employer. It is rare in practice and frequently overturned by the courts. It may allow the employer to bring a civil liability action against the employee for damages caused.
Both classifications are regularly contested before the labour tribunal, and are often reclassified as minor misconduct, with significant financial consequences for the employer who must then pay the notice period and severance indemnity.
No, it is one of the most difficult grounds to establish. To be valid, the professional insufficiency must be supported by specific, objective and documented facts: records of appraisal meetings, written objectives, formal warnings, correspondence showing the employee was given an opportunity to improve.
Labour judges also check whether the shortcomings are attributable to the employer: unrealistic targets, absence of training, internal disorganisation. A poorly prepared dismissal on grounds of professional insufficiency is often reclassified as a dismissal without real and serious cause.
In principle, yes: ordinary illness (non-occupational) does not in itself protect against dismissal. The employer may dismiss for serious misconduct or for a personal reason unrelated to the illness, or for medical incapacity following certification by the occupational physician.
However, the dismissal is null and void if the real reason is the employee’s state of health (discrimination), or if it occurs during a specific protection period (workplace accident or occupational illness, maternity leave, etc.). In such cases, the employee may seek reinstatement or a compensation award outside the Macron scale.
The limitation period is 12 months from notification of the dismissal for any claim relating to termination of the contract (Art. L. 1471-1 of the Labour Code). This deadline is short, and it is advisable to act promptly.
Other time limits may apply depending on the nature of the claims (salary arrears, discrimination, etc.). A consultation with a lawyer allows all available actions to be identified and no right to be lost to limitation.
The answer depends on several factors: the strength of the employer’s case, the employee’s length of service, the amounts at stake and the risk appetite of both parties. A settlement offers the advantage of speed, confidentiality and certainty, but it entails a definitive waiver of any judicial action on the matters covered.
Litigation before the labour tribunal is more uncertain but may result in higher awards, particularly where the dismissal is declared null and void. An employment lawyer can objectively assess the risk/opportunity balance before recommending either course.
As early as possible. For the employer, a consultation before initiating the procedure allows each step to be secured, the correct ground to be selected and the relevant correspondence to be prepared. An error of timing or a poorly worded ground can turn a justified dismissal into a dismissal without real and serious cause.
For the employee, acting promptly allows the dismissal letter to be reviewed, entitlements assessed, useful evidence gathered and the right strategy chosen, whether negotiation, settlement or litigation. The 12-month deadline passes quickly.
Patchwork Avocats acts in both advisory and contentious matters, for companies and for employees. Contact the firm.
Conclusion
Dismissal on personal grounds is a procedure that leaves no room for approximation: the ground must be real and serious, the procedure rigorously followed and the dismissal letter precisely worded. For employers and employees alike, mastering these rules, and anticipating the risks, frequently makes the difference.
Patchwork Avocats assists companies in securing their HR decisions and supports executives, managers and employees in defending their rights, in both advisory and contentious matters before the labour tribunal.