What is dismissal for professional insufficiency?
Recent case law from the French Supreme Court (Cour de cassation, July 9, 2025) has tightened the conditions for the validity of this type of dismissal. Here’s what you absolutely must know to avoid reclassification as dismissal without real and serious cause—and costly litigation.
Why is this issue crucial for employers?
Dismissal for professional insufficiency, a common reason for terminating an employment contract, is a significant source of litigation, especially when the employer has not fulfilled its obligations to support and train the employee. A landmark ruling by the Cour de cassation (July 9, 2025) emphasizes that employers cannot simply note professional shortcomings; they must have fulfilled their duty to adapt and train the employee. Failure to do so may result in the dismissal being reclassified as dismissal without real and serious cause, exposing the company to damages of several months’ salary.
What constitutes professional insufficiency?
Professional insufficiency is non-disciplinary and unrelated to physical ability to work. It is characterized by an employee’s inability to properly perform assigned tasks, such as:
- Poor quality work
- Unmet objectives
- Repeated negligence or errors
Warning: This reason can only be invoked if the employer has previously implemented appropriate support (training, clear objectives, etc.). Otherwise, a judge may rule that the dismissal lacks real and serious cause, entitling the employee to damages.
Employer Obligations: Support and Train Before Dismissal
- Objectively assess performance Before any procedure, the employer must be able to prove that the employee’s shortcomings are real and repeated (evaluations, meeting minutes, etc.).
- Provide support and training Case law requires that the employer has done everything possible to enable the employee to improve and receive training. The employer must demonstrate having provided:
- Targeted training
- Mentoring or tutoring
- Progressive and realistic objectives
- Regular review meetings
- Formalize warnings Any shortcomings must be communicated to the employee in writing, with reasonable time allowed for improvement.
Practical Example:
For an employee with several years of service who makes repeated errors, the employer must first offer an improvement plan (e.g., training, adjusted tasks) and allow time for progress before considering dismissal.
What the Cour de cassation Says in 2025
In a ruling dated July 9, 2025, the Cour de cassation reiterated that dismissal for professional insufficiency must be a last resort, after all support options have been exhausted. If the employer cannot prove compliance with these obligations, the dismissal will be reclassified as dismissal without real and serious cause, resulting in:
- Payment of severance indemnities
- Damages for unfair dismissal
- Possible reinstatement of the employee
Mistakes to Avoid at All Costs
- Dismissing without first notifying the employee in writing of the alleged shortcomings.
- Failing to offer appropriate training or support.
- Lacking written evidence of the support and/or training provided.
- Confusing professional insufficiency with medical unfitness.
FAQ: Your Questions, Our Answers
- Can I dismiss an employee for professional insufficiency without prior training? No. The Cour de cassation requires that the employer has offered appropriate support or training before considering dismissal. Otherwise, the dismissal will be deemed unfair.
- How long should I give the employee to improve? There is no fixed legal duration, but case law holds that the period must be reasonable, depending on the complexity of the tasks and the resources provided. Seniority is another factor to consider.
- What risks does my company face if the procedure is poorly managed? The dismissal may be reclassified as dismissal without real and serious cause, requiring payment of indemnities (see the scale of compensation for dismissal without real and serious cause: French public service simulator).
What to Do If You Face This Situation?
- Prior legal consultation: Review your procedure with a labor law attorney.
- Keep all written records: annual evaluations, meeting minutes, training offers.
Need Tailored Support?
Every situation is unique. Don’t take risks: a poorly managed dismissal can be costly. Attorney Audrey BRUIN, labor law specialist, can assist you at every step:
- Situation audit
- Drafting necessary documents
- Representation before the labor court if needed