Whether it involves implementing an economic dismissal or a dismissal for incapacity - of professional origin or not - the scope of reclassification is the same since the orders of September 22 and December 20, 2017.
It is up to the employer to prove that he actually sought to reclassify the employee without succeeding. For this and if the employer belongs to a group of companies, he will have to justify the extent of his research limited to the national territory [1] :
a) The scope of reclassification within a group is determined by the capital links between the companies [2] :
- Or the holding of half the capital of another company,
- Either the powers exercised in general meetings and in the appointment of corporate officers of another company, in favor of a majority voting right or at least equal to 40% if no other partner holds a higher fraction;
- Either exclusive or joint control of another company under the conditions provided for by article L233-16 of the commercial code for the establishment of consolidated accounts.
But the mere existence of consolidated accounts is not enough;
The “notable influence” exercised by one company over another is no longer sufficient to define the group [3] .
b) Then, within this reclassification perimeter defined by capital links, the employer must characterize the companies whose activity, organization or location of operation makes it possible to carry out the permutation of all or part Staff.
The permutability of personnel results from a set of clues left to the discretion of the trial judges who objectively examine whether the employee can occupy a comparable position in another company in the group.
In a context of economic dismissal, the Court of Cassation recalled that the notion of permutability of personnel is not to be confused with the notion of sector of activity which is the scope of reclassification retained for the assessment of the economic cause [4] .
It is therefore within this “capital intensive/permutability” subgroup that reclassification must be sought and proven by effective approaches to the companies in this subgroup.
[1] Cass.soc 03/31/2021 n° 19-17300 FS-P
[2] By reference to the articles of the Commercial Code covered by the three articles of the Labor Code: 1233-4 (reclassification in the context of economic dismissal), 1226-2 (reclassification in the context of non-professional incapacity) and 1226 -10 (reclassification in the context of professional incapacity)
[3] Cass.soc 05/07/2023 n°22-10158 FS-B
[4] Cass.soc 08/11/2023 n°22-18784 FB