When a medical-psychological care assistant is dismissed

How is dismissal for gross misconduct defined?

Gross misconduct is defined as an act or set of acts attributable to the employee, constituting a breach of the obligations arising from the employment contract or the employment relationship, of such seriousness that it makes it impossible to keep the employee in the company, even during the notice period: it is defined by Articles L1232-1, L1234-1 and L1234-9 of the French Labour Code. The courts assess it on a case-by-case basis.

What are its consequences?

This classification deprives the employee of severance pay and of payment in lieu of notice, and it must be assessed strictly by the court, having regard to the seriousness of the acts, whether they are attributable to the employee, their impact on the employment relationship and the need for an immediate response from the employer.

A precautionary suspension is generally provided for in the letter inviting the employee to a preliminary interview that may lead to a disciplinary sanction up to and including dismissal: this is the first response that a court will examine in order to verify whether the employee’s misconduct was gross.

On the general procedure

The Court of Cassation only rules on points of law, unlike the lower courts, whereas the Employment Tribunal (Conseil de prud’hommes) and the Court of Appeal rule on both the facts and the law. This means that when it quashes a Court of Appeal decision, the latter is deemed to have misapplied the law. It is not a third level of jurisdiction: it is the supreme court.

The Constitutional Council, for its part, is an institution that holds a central place in the institutional architecture of the Fifth Republic. Its primary task is to ensure compliance with the Constitution, both by reviewing legislation and by overseeing elections and referendums. It is seized in order to challenge whether a statutory provision is compatible with the rights and freedoms guaranteed by the Constitution, by way of a QPC (priority question of constitutionality).

I – Reminder of the facts and the procedure

A – On the facts

Under a fixed-term employment contract starting on 26 September 1994, the Ellen Poidatz Foundation [which manages medico-social establishments] hired Mrs JC as a supervisor until 1 May 1995; this was duly followed by a permanent contract under which she worked as a medical-psychological care assistant on the night team.

By letter with acknowledgement of receipt dated 27 August 2019, Mrs JC was invited to a preliminary interview scheduled for 4 September 2019. By registered letter with acknowledgement of receipt dated 9 September 2019, she was dismissed for gross misconduct.

B – On the procedure

First instance

Mrs JC brought proceedings before the Melun Employment Tribunal (Seine-et-Marne) seeking various forms of compensation, in particular for dismissal without real and serious cause and for the vexatious nature of the dismissal, as well as reimbursement of the days deducted from her salary during the precautionary suspension while the preliminary interview took place.

By judgment of 7 May 2021, the Tribunal requalified Mrs JC’s dismissal as a dismissal for real and serious cause and awarded the employee damages for the particularly vexatious circumstances of the dismissal.

Court of Appeal

The Ellen Poidatz Foundation appealed against the judgment. The ruling of 31 January 2024 held that Mrs JC’s dismissal was indeed a dismissal without real and serious cause and was therefore not based on gross misconduct.

Accordingly, the Court ordered the employer to pay her damages for dismissal without real and serious cause, as well as damages to compensate for the particularly vexatious circumstances of the dismissal, and back pay for her precautionary suspension.

Court of Cassation

In its ruling of 21 May 2025, the Court quashed and annulled the appeal ruling of 31 January 2024, except mainly as regards the damages for vexatious dismissal, and referred the employer and the employee back to the Paris Court of Appeal, differently composed. The law had therefore been misapplied.

II – On the scope of these decisions

A – Article L1235-3 of the French Labour Code

This article lies at the heart of these three decisions. It is the famous “Macron scale”, which came into force on 1 April 2018. It only applies from the date on which it came into force: the law applies only to the future, save in very rare exceptions. The fact remains that this scale sets a minimum and maximum amount of compensation according to the employee’s length of service, depending on whether the company has more or fewer than eleven employees.

Mrs JC, however, asked the Court to apply Article 10 of International Labour Organization Convention No. 158 and Article 24 of the European Social Charter in order to set the scale aside. She is not the only one to have tried to set aside Article L1235-3 of the French Labour Code. However, the Courts of Appeal have consistently ruled against this, in particular the Paris Court of Appeal on 31 January 2024 and the Toulouse Court of Appeal on 28 January 2022.

The main grounds relied on by the Courts of Appeal to justify keeping the compensation scale are compliance with the legal framework, the lack of evidence of greater loss, the consistency of the scale with the purpose of compensating loss, the absence of any manifest conflict with international standards, and the application of the scale save in duly justified exceptional circumstances.

A priority question of constitutionality was also raised against this article before the Macron scale was introduced. The Court of Cassation had been seized by an employer who, in the context of a redundancy, argued that this article infringed the principle of equality before the law and the freedom to conduct a business, because of the different treatment depending on the size of the company. This is what is known as a QPC (priority question of constitutionality). In these circumstances, on 13 July 2016 the Court of Cassation found that the question was serious and decided to refer it to the Constitutional Council.

In a decision of 13 October 2016, the Constitutional Council rejected these arguments, holding that the difference in treatment was justified by a general-interest objective (not increasing the burden on small businesses) and that the measure was not disproportionate in relation to the freedom to conduct a business.

B – The assessment of the misconduct

As it happens, the disabled person who complained about Mrs JC’s behaviour did so only once, even though their account was corroborated by a patient sleeping next to them. The Court pointed out that the employee had never received any prior warning, so that the grounds for dismissal were insufficient and unable to support a finding of gross misconduct, under Articles L1234-1, L1234-5 and L1234-9 of the French Labour Code.

Likewise, the sanction imposed for the facts that were materially established was disproportionate, since the employee had never received the slightest warning about her behaviour towards patients, even though a month before the events of 26 August 2019, criticisms made by parents had already been brought to the Foundation’s attention, under Articles L1234-1, L1234-5 and L1234-9 of the French Labour Code.

In summary, recent case law shows that gross misconduct is upheld where the acts of which the employee is accused are established, repeated and so serious that they make it impossible to keep the employee in the company. Conversely, a lack of evidence, a disproportionate sanction or acts that are not sufficiently serious lead to it being set aside.

Conclusion

Each case is assessed in concreto by the judges, who require a precise and detailed demonstration of the alleged failings.

But what will the court to which the case has been referred decide, now that the Court of Cassation has quashed the ruling of the Paris Court of Appeal of 31 January 2024!