Employment Case Law Selection - France | Second Semester of 2025

This newsletter presents five court decisions handed down in recent months.

• Temporary workers must be allowed to participate in works council (“CSE”) elections (Cass. Soc., 15 October 2025, No. 24-13.266)

A company using employees seconded from another company organized elections to renew its CSE. A trade union asked a court to cancel the elections, arguing that the seconded employees had not been duly informed of their right to vote in these elections.

According to the French Supreme Court, the seconded employees had not been properly informed, in particular because the information was sent to them by text message with no means of verifying receipt, and there were no specific provisions in the pre-election agreement dealing with the way these seconded employees would be informed. The elections were therefore annulled.

• A professional evaluation system based on a subjective assessment of employee behavior is unlawful (Cass. Soc., 15 October 2025, No. 22-20.716)

An employer had implemented an individual interview process. A trade union challenged the process before the courts, seeking to have it declared unlawful and to prohibit the employer from using it.

The Court of Appeal upheld this request. It was found that the concepts of optimism, honesty, and common sense used in the interview forms were too vague and imprecise to assess skills. Furthermore, they were deemed to leave too much room for the evaluator's subjectivity.

The French Supreme Court approved the Court of Appeal's decision. It confirmed that the interview process was unlawful because it was not based on precise, objective, and relevant criteria for assessing employees' professional abilities.

• The inability to communicate with one’s superiors may fall within the scope of freedom of expression (Cass. Soc., 17 September 2025, No. 24-11.090)

An employee was dismissed for poor performance. The dismissal letter mentioned an inability to communicate with her superiors. Claiming that her dismissal violated her freedom of expression, the employee brought the case to court and requested that it be declared null and void.

The Court of Appeal rejected this request and confirmed that the dismissal was due to poor performance. It considered the dismissal justified by the assessment of various professional qualities, in particular her inability to communicate, and not because of the comments she made.

The French Supreme Court overturned this decision. In its view, the disparagement of her line manager and, more generally, her poor communication with her superiors could be considered part of the employee's freedom of expression. The Court of Appeal should therefore have verified whether she had abused this freedom.

• Disciplinary sanctions need not be identical for all employees (Cass. Soc., 17 September 2025, No. 23-22.456)

Three employees were sanctioned for belatedly reporting suspected sexual abuse to their superiors. Two employees were dismissed for serious misconduct, while the third received a simple warning.

One of the dismissed employees challenged this difference in treatment.

The Court of Appeal rejected the employee’s claim and the French Supreme Court upheld this decision. The employer may impose different disciplinary measures if objective factors justify them. In this case, the employee who received the warning was only aware of certain events and for a shorter period.

• The employer must provide the necessary training or support before dismissing an employee for poor performance (Cass. Soc., 9 July 2025, No. 24-16.405)

An employee was dismissed for poor performance. He brought the case before the court.

At first instance, the court found the dismissal to be without actual and serious cause, holding that the employer had not established that it had provided its employee with the necessary assistance to remedy his shortcomings, and in particular had not offered a performance improvement plan with appropriate support.

The French Supreme Court upheld this decision, ruling that the dismissal was unfair because the employer failed to prove that it had provided training or other mentoring to help its employee.