Law firm specialising in employment law
and social security law.
Law firm specialising in employment law
and social security law.
Job interviews can raise many questions for employees and employers alike.
What are the employer's obligations in this respect? And how should these interviews be conducted?
We take a look at the issues in this article.
The aim of the professional interview is to ensure that employees are properly adapted to their jobs and to support them in their career development prospects, particularly in terms of qualifications and employment.
It also informs employees about the training they could receive, the activation of their personal training account, the validation of their acquired experience and the possibility of using the services of a professional development adviser. These compulsory topics are set out in article L.6315-1 of the French Labour Code.
Please note:
Please note the purpose of the professional interview is not to assess the employee's skills. In this respect, it differs from the annual appraisal interview. (Cass. Soc., 6 July 2016, no. 15-18.419)
The professional interview is compulsory; it is set out in article L.6315-1 of the French Labour Code.
It must be introduced by all employers, whatever their size or legal form, as soon as the first employee is taken on.
The employee must benefit from this every two years from the date of joining the company.
Employees returning to work after a significant period of absence must also be systematically offered the opportunity to attend a professional interview, particularly at the end of long-term sick leave, maternity or adoption leave, parental education leave, leave to care for family members, sabbatical leave or a period of part-time work. (Article L.6315-1 of the French Labour Code)
As soon as they are recruited, employees must be informed that a professional interview will be held every two years. This information may be included in the employment contract, in a letter accompanying the contract or the promise of employment, or may be provided for by an internal company policy.
As mentioned above, the professional interview must take place every two years.
Every six years, a summary of the employee's career path, known as the "assessment interview", must also be carried out in addition to the "classic" career interview.
In addition to the items covered in the professional interview, the assessment interview :
The form is not laid down in the legislation, which leaves employers free to decide what they should do.
However, it is advisable for the employer to give the employee advance notice so that he or she can prepare for the meeting and ensure that it is conducted as constructively as possible, by sending the employee a form to fill in with all the topics to be discussed.
The interview is generally organised during working hours.
It may, however, be carried out by videoconference, provided that it complies with the conditions set out in article L.6315-1 of the French Labour Code and results in the drafting of a document, a copy of which is given to the employee. (Questions and answers from the Ministry of Labour dated 30 September 2022)
A report of the professional interview must be drawn up and a copy given to the employee. (Article L.6315-1 of the French Labour Code)
As well as being compulsory, the minutes are also essential as they can be used to demonstrate that the employer has organised the interview correctly, in line with its legal obligation.
Once again, no details are given as to the form that the interview should take, but it would seem necessary to indicate at least the date and reason for the interview, the position held by the employee, the history of the last two years, explaining the training provided, and any decisions taken regarding the employee's career development. In addition, it is advisable to specify that mandatory points such as information on the professional training account or VAE have been addressed. (CA Paris, 9 February 2023, no. 19/08921)
Every six years, the interview report must also contain a certain amount of additional information so that the employer can demonstrate compliance with his obligations: the dates of the most recent interviews, the qualifications acquired, the most recent training courses attended and the employee's career development over the last six years.
While the professional interview is to be distinguished from the annual appraisal interview, the Cour de cassation has clarified that these two interviews may be held on the same day, provided that the subjects covered are not the same. Thus, assessment issues must not be raised during the performance review. (Cass. Soc., 5 July 2023, no. 21-24.122)
As a result, the minutes must necessarily be separate; it is also advisable to use different forms, signed separately, in order to limit the risk of disputes.
The employer must inform and consult the CSE on the implementation of the professional interview (article L.2312-8 of the Labour Code). The employer must set out in detail how the interviews are to be organised and what measures are to be put in place.
Every year, information on the implementation of the professional interviews and the summary inventory, which takes place every six years, must be sent to the Works Council (article L.2312-26 of the French Labour Code).
If the professional interview is not organised, the employer is liable to two types of penalty:
For example, an employer was ordered to pay damages of €5,000 for failing to organise professional interviews for an employee over a period of 13 years. The damages compensated for the loss of a serious chance of favourable change in the employee's professional situation. (Lyon Court of Appeal, 5 December 2019, no. 17/08426; Bordeaux Court of Appeal, 27 July 2023 no. 21/00835)
This sanction is a financial penalty provided for by the French Labour Code (article L.6323-13) and is not subject to any dispute. In principle, it is automatic, so if the employer has not complied with its obligations, it must make the so-called "corrective" contribution on its own initiative.
And in practice? To do this, the employer must send the Caisse des dépôts et consignations all the information required for the contribution (amount, name of the employee beneficiary, data enabling him/her to be identified) and inform the employee of the payment, which will be credited to his/her account as soon as the sum is received (Questions/Answers from the Ministry of Labour, 30 September 2022)
If the employer does not make the payment, or if it is insufficient, the administration may issue a formal notice to do so, following an adversarial procedure. If it fails to do so, the employer must pay the Treasury an amount equivalent to the shortfall, plus 100%.
In order to avoid this penalty, the employer must be able to prove that the employee has benefited from three professional interviews and a review interview over a period of six years, at least one training course other than compulsory training over the last six years and salary or professional progression.
For example, in 2022, the Dijon Court of Appeal rejected the employee's request that the employer be ordered to top up his CPF, given that he had taken several training courses and had also received a pay rise under the previous provisions (Dijon Court of Appeal, 3 March 2022, no. 20/00115; Paris Court of Appeal, 2 December 2020, no. 18/05343).