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
Note: Special additional category: dismissals following receivership or judicial winding-up: art. L 1233-58 LC.
Article 2254-2 LC provides for the possibility to conclude enterprise agreements “in order to meet the needs arising from the operation of the enterprise”, in addition to those concluded for the purpose of preserving or developing employment. The existence of economic difficulties is not required. These agreements are called “collective performance agreements”. If an employee refuses the modification of his or her employment contract resulting from the application of such an agreement, s/he may be dismissed. Such dismissal no longer constitutes an economic dismissal. It is an individual dismissal lying on genuine and serious grounds. The employer can initiate a dismissal procedure within 2 months following notification by the employee that s/he refuses the modification of his/her employment contract (art. L. 2254-2 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. In enterprises with at least 11 employees, a newly created body, the social and economic committee, needs to be consulted, art. L 1233-8 LC.
* Dismissals concerning 10 or more employees over a 30 day period: art. L 1233-28 to L 1233-33 LC. The social and economic committee needs to be consulted, art. L 1233-28 LC.
(Criminal penalties for failure to observe those requirements: art. L1238-2 LC)
If a company with at least 1000 employees intends to close an establishment and such a decision would lead to collective dismissals, it must inform and consult the social and economic committee, including on any take-over proposal it wishes to accept. Art. L 1233-57-9 to L 1233-57-11 and art. L 1233-57-15 to L 1233-57-19 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).
A company with at least 1000 employees must inform immediately the administrative authority and the mayor of the municipality concerned of any intention to close an establishment when such a decision would lead to collective dismissals. Art. L. 1233-57-12 and L 1233-57-13 LC.
Notificación a los representantes de los trabajadores:
* Less than 10 employees over 30 days: art. L 1233-8 to L 1233-10. In enterprises with at least 11 employees, notification needs to be made to the social and economic committee, art. L 1233-8 LC.
*10 or more employees over 30 days: art. L 1233-28 to L 1233-33 LC. Notification needs to be made to the social and economic committee, art. L 1233-28 LC.
A company with at least 1000 employees must inform the social and economic committee of any intention to close an establishment when such a decision would lead to collective dismissals. See art. L. 1233-57-9 to L 1233-57-11, art. L 1233-57-15 to art. L 1233-57-20 LC.
Aprobación de la administración publica o de organismos judiciales:
Intervention of the administration 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.
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 social and economic committee. 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.
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...):
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. A redeployment can only take place in companies whose organization, activities or place of operation provides for the rotation of all or part of the staff (art. L1233-4 LC).
A mandatory "employment safeguard plan" (plan de sauvegarde de l'emploi) to avoid dismissals or limit their number, for companies 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. The dismissal procedure is invalid in the absence of a decision by the administrative authority to approve the employment safeguard plan (art. L. 1235-10 LC).
In addition, in companies with at least 1000 employees, the employer must propose to the employees concerned a “reclassification leaveu201d (congé de reclassement) of up to 12 months (art. L. 1233-71). 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).
When a company with at least 1000 employees intends to close an establishment and such a decision would lead to collective dismissals, it must look for a take-over business and provide a reasoned response to any take-over offer. See art. L. 1233-57-14 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.