Definición de despido colectivo (número de empleados afectados):
The labour code defines economic dismissal but not collective dismissals.
However, the LC contains specific sections on the legal requirements applicable to economic dismissal concerning:
1) less than 10 employees over a 30-day period;
2) 10 or more employees over a 30-day period.
See: art. L 1233-3 LC, art. L 1233-8 ff. LC , art. L 1233-21 ff. LC
NB: Special additional category: dismissals following receivership or judicial winding-up: art. L 1233-58 LC.
[New in 2013] Act No. 2013-504 of 14 June 2013 on employment security introduced the concept of “employment maintenance agreement”: in companies facing serious economic difficulties, a collective agreement may, within certain limits, provide for the modification of working time arrangements and remuneration in exchange for the preservation of jobs. These agreements can be concluded for a period of 2 years maximum. During that period, the employer cannot dismiss for economic reasons any employee to whom the agreement applies. Refusal of such modifications by an employee leads to his or her economic dismissal. See art. L 5125-2 LC.
Consultación previa con los sindicatos (representantes de los trabajadores):
* Dismissals concerning less than 10 employees over a 30 day period: art. L 1233-8 to L 1233-10.
* Dismissals concerning 10 or more employees over a 30 day period: art. L 1233-28 to L 1233-33 LC.
(Criminal penalties for failure to observe those requirements: art. L1238-2 LC)
Notificación a la administración:
* Less than 10 employees over a 30 day period of time: art. L 1233-19 LC.
* 10 or more employees over a 30 day period: art. L 1233-46 LC.
+ Criminal penalties for failure to observe the notification requirement: art. R1238-2 (less than 10 employees) and art. L 1238-4 LC (10 or more employees).
Notificación a los representantes de los trabajadores:
* Less than 10 employees over 30 days: art. L 1233-8 to L 1233-10
*10 or more employees over 30 days: art. L 1233-28 to L 1233-33 LC.
[New in 2013: following the adoption of Act No. 2013-504 of 14 June 2013, companies with at least 1000 employees who intend to proceed to a collective dismissal leading to the closure of an establishment must inform the works council accordingly and look for a take-over business. See art. L. 1233-90-1 LC
Aprobación de la administración publica o de organismos judiciales:
Intervention of the administration [new in 2013 ] in companies not subject to the obligation to establish an employment safeguard plan (plan de sauvegarde de lu2019emploi), the administration verifies the regularity of the procedure (with regard to information to the workers' representatives, adoption of social plan): See L 1233-53 and L 1233-56 LC.
Note: Companies subject to the obligation to establish an employment safeguard plan are those with at least 50 employees that intend to proceed to the dismissal of at least 10 employees over a 30-day period, art. L.1233-61 LC.
[New in 2013] The following measures were introduced by Act No. 2013-504 of 14 June 2013 on employment security: when the establishment of an employment safeguard plan is mandatory, its content may be determined by collective agreement (art. L 1233-24-1 to L 1233-24-3 LC). In the absence of a collective agreement, it is established by the employer ( art. 1233-24-4 LC). The collective agreement or the document unilaterally established by the employer must be submitted to the administrative authorities for approval (see art. 1233-57-1 to art. 1233-57-8 LC).Further, approval of the labour inspectorate is requested prior to dismissal of some protected workers (i.e. trade union rep.: art. L 2411-3 LC).
Acuerdo de los representantes de los trabajadores:
Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio):
Art. L 1233-5 LC:
In the absence of a collective agreement, the employer defines the criteria used to determine the order in which the dismissals will take place, after consultation with the works council or, in the absence of such a body, with workers' representatives. These criteria take into consideration, among others:
1) family responsibilities
2) length of service
3) the situation of employees whose re-entry in the labour market is difficult for social reasons (in particular for elderly employees and persons living with a disability)
4) professional skills.
[New in 2013] Following the amendment of this provision by Act No. 2013-504 of 14 June 2013 on employment security, the employer can give more weight to one of these criteria, provided that the other criteria are taken into consideration.
Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...):
Art. L 1233-4 LC: a collective dismissal can only take place after having made every possible training and adaptation effort and if the redeployment of the employee concerned, in the same company or in another company of the same group, appears not to be possible.
Mandatory "employment safeguard plan" (plan de sauvegarde de l'emploi) to avoid dismissals or limit their number, for enterprises with more than 50 employees in case of a collective dismissal concerning 10 or more employees over a 30 day period: art. L 1233-61 to L 1233-64 LC. [New in 2013: the dismissal procedure is invalid in the absence of a decision by the administrative authority to approve the employment safeguard plan. See art. L1235-10 LC as amended by Act No. 2013-504 of 14 June 2013].
In addition, in companies with at least 1000 employees, the employer must propose to the employees concerned a “reclassification leaveu201d (congé de reclassement). [New in 2013:] the maximum length of this leave was raised from 9 to 12 months (art. L. 1233-71 LC). In companies that are not subject to this obligation, the employer must propose a “professional employability agreementu201d (contrat de sécurisation professionnelle) (art. L.1233-66).
[New in 2013]: Further, following the adoption of Act No. 2013-504 of 14 June 2013, companies with at least 1000 employees who intend to proceed to a collective dismissal leading to the closure of an establishment must inform the works council accordingly and look for a take-over business. See art. L. 1233-90-1 LC.
Reglas de prioridad para la re-contratación:
In case of economic dismissal : preferential rehiring during a 1-year period, upon request of the employee: art. L 1233-16 and L 1233-45 LC.
See also art. L 1235-13 LC: non-observance of the preferential right to re-employment entails payment of a compensation of a least 2 months' wages.