The law implementing the pension reform has been published.
The challenge to this law is still very strong.
The government is seeking to open discussion with the trade unions.
Giving employees the right to be assisted by an « avocat » during a dismissal or a contractual termination would be a strong measure.
1) Right to be assisted by an avocat during police custody but not during a pre-dismissal interview
Law no. 2011-392 of 14 April 2011 enshrined the right for a person in custody to be assisted by a lawyer.
A citizen can be kept in custody for having run a red light or for having participated in a demonstration.
In this case, he will be reminded of his right to be assisted by an « avocat » while in police custody.
However, curiously, during a preliminary interview for dismissal or a contractual termination, the employee does not have the right to be assisted by a lawyer.
The law allows the assistance of the employee by an adviser of the employee but not by a lawyer.
However, the interest at stake, namely his employment, is very important.
This can be all the more important if the employee is old, if he has a lot of seniority in his company or if he has a significant family responsibility or if he is disabled.
The right to be assisted by an « avocat » by an employee would contribute to the rights of defense of the latter.
2) Employment, the only means of subsistence for the employee
Knowing that often, the salary from his job is his only means of substance to pay for his food, his accommodation and educate his children.
In addition, the interlocutor with whom the employee must deal, namely his employer, is often experienced in the exercise.
Human Resources (HR) are often trained in the dismissal procedure or even in the conventional termination procedure, which has often supplanted the dismissal procedure.
Moreover, the now common expression “go see HR” is often synonymous with an announced departure of the employee.
This would make it possible to rebalance the balance between the employer and the employee during a dismissal procedure or a contractual termination.
3) Amendment of Article L 1232-4 of the Labor Code (dismissal) or Article L. 1237-12 (contractual termination)
3.1) Dismissal procedure
All that would be needed for this is a simple modification of article L. 1232-4 of the labor code as follows.
“During his hearing, the employee can be assisted by a person of his choice belonging to the staff of the company or by a lawyer.
When there are no personnel representative institutions in the company, the employee can be assisted either by a person of his choice belonging to the personnel of the company or a lawyer, or by an adviser of the employee chosen on a list drawn up by the administrative authority.
The letter of convocation to the preliminary interview sent to the employee mentions the possibility of having recourse to an adviser of the employee or a lawyer and specifies the address of the services in which the list of these advisers is made available to him.
3.2) Conventional termination procedure
Regarding contractual termination, Article L. 1237-12 would be amended as follows:
“The parties to the contract agree on the principle of a contractual termination during one or more interviews during which the employee can be assisted:
1° Either by a person of his choice belonging to the personnel of the company, whether it is an employee holding a union mandate or an employee who is a member of an institution representing the personnel or any other employee or a lawyer;
2° Or, in the absence of an institution representing staff in the company, by an employee adviser chosen from a list drawn up by the administrative authority or by a lawyer.
During the interview(s), the employer has the option of obtaining assistance when the employee makes use of it himself. The employee informs the employer beforehand; if the employer also wishes to be assisted, he in turn informs the employee.
The employer may be assisted by a person of his choice belonging to the staff of the company or by a lawyer or, in companies with less than fifty employees, by a person belonging to his trade union of employers or by a another employer in the same branch or a lawyer".
4) No teaching of labor law
Labor law is not taught, neither at school nor in high school.
Workers, even with executive status, often do not know their rights.
For example, managers often mistakenly believe that they cannot be paid for overtime.
Similarly, managerial employees on a day-time package are unaware that they can deprive the latter of its effect if there is no control of their workload and thus obtain payment for their overtime hours worked beyond 35 hours subject to being able to prove them.
In addition, the issues of occupational health and/or moral or sexual harassment are increasingly complex, making it necessary for the employee to be assisted by a lawyer.
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
.Paris: 34 rue Petrelle 75009 Paris tel: 0142560300
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
.Lille: : 45, Rue Saint Etienne 59000 Lille – Ligne directe +(33) 03.20.57.53.24
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