"Working better to earn more": the rating of employees is in the air. It aims to measure the contribution of the employee and summarized in a single number "1" for the best, "2" for the bulk of the pack and "3" for the worst. This approach may nevertheless pursue other objectives, less noble: the dismissal or discrimination. More and more frequently, the unions denounced the diversion. The yellow line not to cross is drawn as much by the labor law than criminal law.
A succession of notes "3" can constitute a ground for dismissal? Article L.1232-1 of the Labor Code provides that any dismissal for personal reasons must be justified by a real and serious. Case law provides that "the lack of results can not in itself constitute a ground for dismissal" (Cass. Soc.: 2/3/2005, 12/2/2002). In practice, it requires that three conditions are met.
First, it is necessary that the lack of results is attributable to the employee himself. This excludes any system in which the note would be based in part on failures attributable to the company.
Secondly, the reason for dismissal must be objective. It is therefore important that the note is not based on subjective considerations, such as team spirit or the more commonplace "note of mouth." The objectives underpinning the ratings will necessarily be consistent with those previously obtained by the employee or those of other employees.
Thirdly, the case law requires that the cause of dismissal is a serious character. To this end, it controls proportionality between cause and effect of dismissal. A scoring system with a cleaver and automatic effect may therefore disregard this requirement. Thus, a system providing for automatic dismissal following two notes "3" row should not be allowed by the judges.
Beyond its defense on the right of dismissal, the employee may also object to the scoring on the ground of discrimination, which is particularly fertile.
Indeed, the principle of non-discrimination under Article L.1132-1 of the Labour Code is to apply widely, "especially with regard to pay (...), incentive measures or distribution of shares, training, reclassification, assignment, qualification, classification, professional promotion, mutation.
Most of the time, the rating will have an impact in one of these materials. If it appears that this notation is based on the employee's personal characteristics, including age or gender, then it can not only ask but its invalidity compensation for the damage he has suffered.
Article L.1134-1 of the Labour Code makes effective protection of the employee: they simply present "the facts suggesting the existence of a direct or indirect discrimination." It is then up to the employer to prove that its decision is justified by "objective factors unrelated to discrimination." As an exception to ordinary law, therefore the defendant to prove absence of fault. This is never easy.
Article L.1134-2 of the Labour Code completes construction protective of the employee, since the unions nationally representative may exercise the legal anti-discrimination actions by replacing the individual, without having to justify a warrant from him.
Penal Code comes to the rescue of the employee when the discrimination led to the sanction or dismiss. In this case, Article L.225-2 provides for a sentence of three years imprisonment and a fine of 45,000 €. As this is an intentional crime, then it is the employee to demonstrate that the decision was made voluntarily and consciously for a discriminatory reason. It will therefore be well advised to produce some statistical data to establish such an intention. This may include the frequency of the lowest scores correlated with age of employees.
Ultimately, simplicity of scoring runs by nature subtle balance between the demands of management and those of human rights.
Michel PASOTTI - Lawyer at the Paris Bar - Doctor in Economics - Paris, May 24, 2009
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