A senior IBM sales representative engineer had been employed by IBM for 20 years, starting in January 1999.

He resigned in October 2019.

In May 2022, he was rehired by IBM France with a four-month probationary period and his seniority was reinstated to March 2002.

He was notified of the termination of his probationary period.

The sales representative contested the termination.

1) SUMMARY OF THE FACTS AND PROCEDURE

Mr. X was rehired by IBM France on August 29, 2022, as a Sales Manager, with executive status, after having held various high-level sales positions there for over twenty years.

This hiring was done through a permanent employment contract (CDI) stipulating a four-month probationary period and a clause recognizing prior service dating back to March 23, 2002.

The contract also stipulates a fixed monthly salary of €11,334, which may be supplemented by variable compensation.

Mr. X was notified on November 30, 2022, of the termination of his probationary period.

Mr. X filed a claim with the Labor Court (Conseil de Prud'hommes) to contest the termination of his contract and claim payment of various sums.

2) REASONS FOR THE DECISION

The Nanterre Industrial Tribunal, Management Section, having deliberated in accordance with the law, ruling publicly, by adversarial judgment and at first instance, by making the judgment available at the registry on November 27, 2025:

ORDERS SAS COMPAGNIE IBM FRANCE to pay Mr. X:

- €60,000.00 (sixty thousand euros) in damages for the harm resulting from the wrongful termination of the probationary period,

- €1,000.00 (one thousand euros) pursuant to Article 700 of the Code of Civil Procedure,

DISMISSES all other claims of the parties,

ORDERS SAS COMPAGNIE IBM FRANCE to pay all costs.

The parties did not appeal; the judgment is final.

2.1) Sur la rupture de la période d'essai
The Council considers that the termination of the probationary period in question does not constitute grounds for nullity under the law, noting that nullity cannot exist without a legal basis, and therefore dismisses the Employee's claim.

In any event, the nullity of the probationary period would not entitle the employee to the compensation provided for in the case of a dismissal without just cause; the Council dismisses Mr. X's subsequent claims on this basis.

The Council also considers that IBM France abused its right to terminate Mr. X's probationary period.

Indeed, the employer was fully aware of Mr. X's professional skills in previous sales roles, similar to those of the position assigned in this instance.

His experience and seniority with his employer, implying his knowledge of expectations and internal processes, were thus decisive factors in his hiring.

Any potential mismatch that might arise after hiring between the expected skills and those actually possessed could have been remedied by a period of adaptation to the job requirements, which the employer was obligated to offer as part of its duty of good faith under the contract, and which was not fulfilled in this case.

Consequently, the probationary period, which aims to verify the employee's suitability for the assigned professional duties, could not be terminated in this instance without abuse.

The Council, taking into account Mr. X's personal circumstances and the specific facts of the case, assesses the fixed compensation for his damages resulting from the wrongful termination of the probationary period at €60,000.

2.2) Regarding variable compensation

The Council notes that the parties were not bound on this point, as only the eligibility for variable compensation was the subject of an agreement between the parties.

The Council also considers that Mr. X, who bears the burden of proof for his claims, has not established their validity.

The terms of the variable compensation plan in question stipulated the achievement of a semi-annual sales target.

However, Mr. X has provided no evidence whatsoever of even beginning to achieve his professional objective.

The Council finds that Mr. X cannot rely solely on the alleged disloyalty of his employer in setting objectives, which is in any case unproven, to claim payment of all or part of his annual variable compensation.

The Council dismisses Mr. X's claim.


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

www.chhum-avocats.fr

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