In an interview with Le Parisien on December 2, 2023, the Minister of the Economy, Bruno Le Maire, indicated that he wanted to reduce the time limit for contesting a dismissal from one year to two months.
The Minister of the Economy, Bruno Le Maire, indicated on Saturday December 2, during an interview with Le Parisien: “We need drastic simplification measures for businesses. […] VSEs like SMEs, ETIs or large groups can no longer stand the paperwork and cumbersome procedures. […] Today, when you dismiss a person, an appeal against the company remains possible for 12 months. It is important that employees can be protected, but this delay is too long.”
He also added that “In all other developed countries, it is two months. That seems like a good time frame to me.”
This reform could be proposed during the Pacte II bill which aims to give more freedom to businesses, which the minister will present at the beginning of 2024.
The deadline has already been reduced:
- With Law No. 2013-504 of June 14, 2013 which replaced the five-year limitation period under common law with Article L. 1471-1 of the Labor Code, providing for a two-year limitation period for any action relating to execution or termination of the employment contract;
- With the Macron Ordinances (Order No. 2017-1387 relating to the predictability and security of labor relations of September 22, 2017), going from two years to 12 months (article L. 1471-1 al.2 of the Code of work).
A period of two months appears to be excessively short and could constitute a violation of the right to take legal action, a fundamental right protected in particular by Article 6§1 of the ECHR.
Legal expiry or limitation periods, which are among the legitimate restrictions on the right to a court, have several important purposes, in particular guaranteeing legal certainty by setting an end to actions (ECHR, March 11, 2014, Howald Moor et al. c / Switzerland, n°52067/10 §72).
However, the right of access to a court is violated when its regulations cease to serve the purposes of legal certainty and the good administration of justice and constitute a sort of barrier which prevents the litigant from having his dispute decided on the merits. by the competent court (ECHR, November 16, 2006, Tsalkitis v. Greece, no. 11801/04 § 44).
Thus, the limitations applied cannot restrict the access open to the individual in a manner or to such an extent that the right is affected in its very substance.
Furthermore, they are only compatible with Article 6, § 1, of the Convention if they pursue a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim pursued (ECHR, February 19, 1998). , Edificaciones March Gallego S.A. v. Spain, no. 28028/95, § 34).
In 2022, the social chamber of the Court of Cassation considered that the reduction of the limitation period from 5 years to two years, applicable to any action relating to the execution or termination of the employment contract, did not disregard the requirements of article 6, § 1 (Cass. soc., April 20, 2022, no. 19-17.614).
The solution could well be different if this proposal comes into force.
No study has demonstrated that reducing the time limit for contesting a dismissal to 2 months would create jobs as claimed by the Minister of the Economy.
Today, the protest deadline does not have to be specified in the dismissal letter.
Many employees will let this 2-month period pass, which is very short, knowing that often an employee who has just been dismissed can be in a state of astonishment due to the loss of their job.
The introduction of such a deadline would be a serious social regression and much worse than the Macron Scale because the employee could be deprived of any recourse due to the brevity of the deadline.
For the employees' lawyers, this would involve urgently preparing all the files before the industrial tribunal, knowing that the request must be motivated and include a list of documents.
Sources
. Bruno Le Maire : « Il faut des mesures drastiques de simplification pour les entreprises »
. Article L1471-1 du code du travail https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000036762126
. c. cass. 20 avril 2022, n° 19-17.614https://www.courdecassation.fr/decision/625fa3438361df277dc5971e
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
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