The sprinkler sprinkled! Pay attention to the drafting of the annual appraisal interview report
In the event of dismissal of an employee for fault, it is preferable to have written documents (emails, certificates, etc.) demonstrating the reality of the fault. Indeed, if the employee contests his dismissal, the employer must be able to prove the validity of this measure.
However, there are not always written documents and it can be tempting for the employer to “prepare the ground” during the annual evaluation interview by mentioning at that time faults committed in order to prepare a written record of these breaches.
A writing addressing reproaches to the employee can be reclassified as a warning
A recent decision of the Social Chamber of the Court of Cassation (n° 20-13-833 of February 2, 20222) calls for the greatest caution, however, by recalling that any writing addressing reproaches to the employee and inviting him in a threatening manner to change his behavior, can be reclassified as Warning.
This is valid for a mail, an email, a sms, and, as the social chamber, an annual evaluation interview report.
However, the same wrongful act cannot be sanctioned twice, the dismissal pronounced for the same facts as those stated in the annual interview report is without real and serious cause, except that the facts recur.
More seriously, if the annual maintenance report is written in the manner of a warning, it will prevent the employer from taking advantage of any wrongful act prior to this interview, since it has been judged that the employer must, when he notifies a warning, state all the faulty facts of which he is aware on that date. Failing this, he exhausts his disciplinary powers for acts that are not covered by the warning and can no longer sanction them.
Be careful therefore, before recording in writing the fault committed by an employee, to the objective pursued. If the misconduct is significant or recurrent enough to be sanctioned, it may be preferable to immediately initiate a dismissal procedure (unless there is a contractual obligation to precede this dismissal with several warnings).