Indeed had refused several offers of parttime work

Yet it must be remembered No individual or collective dismissal for economic issue is legitimate if it was preceded by attempts of reclassification (Cass. Soc., April 1, 1992, 24 oct. 2000). According to article l. 321 - 1 of the Code of labour, the employer must provide the employee of the solutions of upgrading to the enterprise or in the companies of the group where there are opportunities for cross-posting of personnel and, the law says clearly, these offers of reclassification "must be written and specific." Called to say what was the value of this requirement, the Court of cassation held, on 20 September, that it was part of the marble how employers can prove that they have met the legal requirements of research for reclassification: they must be able to provide copies of written position offerings that they have made.

In the case that has just been found, the employer did obviously not keep these copies: could present to the judges that the answers of the employee. Indeed, had refused several offers of part-time work. The Court of appeal of Angers was simply: what had felt, it was the reality of the proposals for reclassification, the employer could show by all means that he had conducted the prior research required by the Act. The Court of cassation is the opposite of this statement: the only way to prove that reclassification offers have been made, it is to comply with the Act and, therefore, to make proposals in writing and with sufficient precision so that the employee knows exactly where it goes (Cass. Soc., 20 sept. 2006, no. 04 - 45 703).

Do not see in that decision a manifestation more of excessive formalism of the courts, although instead. The judgment was published on the site of the Court of cassation, accompanied by a press release. Senior magistrates were held to explain the reason for their taking of position while it raises indignation or even surprise. They indicated that the purpose of the provision was to ensure "the effectiveness of the right of the employee to the reclassification and the certainty of the reality of the offers" and that, therefore, writing required by Parliament should be viewed as the only means of admissible evidence.

Consistent proposals

Can only approve: the need for a written proposal has been included in the Labour Code by the Act of social modernization of 17 January 2002, at the time when Elisabeth Guigou was Minister of Social Affairs. Remembered that after the parliamentary elections of 2002, François Fillon, new Minister of labour, no nothing had more pressed, after the revision of the law on the 35-hour, to reform certain provisions of the social modernization law; Yet, it is not income which was the duty of reclassification. In 2005, when economic dismissal again found himself in the program of the Parliament with the social cohesion of Jean-Louis Borloo Act, the rules relating to the obligation for reclassification are unchanged. It is therefore a business duty that no camp does, it is to reclassify the staff before his dismissal on economic grounds.

Despite this constantly renewed commitment of Governments, many are still employers who take this duty lightly and try to get by with Fireworks. Therefore, the company Sopad-Nestlé, who thought to discharge its obligation by simply creating a reclassification antenna, was sentenced by the Court of appeal of Chambéry, on 7 July 1994. Similarly, the Court of cassation has just censor an employer who believed have performed its duty by releasing the list of positions available on its intranet and sending the list of licensees in the branches of the Group (Cass. Soc., 26 sept. 2006). What are these behaviours which prompted members to require the writings to make offers of reclassification of consistency.

Can criticize the obligation of reclassification, say that it prevents efficient management of skills and is detrimental to the unemployed, and many things yet, but one thing is certain: for the time being, judges like Parliament is there show very attached.