Dismissal for serious misconduct: procedure, rights and appeal

Receiving a summons with immediate suspension is destabilising. Yet the employer must prove that a dismissal for serious misconduct is justified, and half of these classifications collapse before the courts. A lawyer reviews your situation in 20 minutes on Avocat20min.fr.

Dismissal for serious misconduct: the definition

The law does not define serious misconduct. The Cour de cassation, however, looks for a fact or a set of facts that make it impossible to keep the employee in the company, even for the length of the notice period.

Three levels coexist, and the difference weighs heavily on your final pay:

Classification	Notice period	Statutory severance
Ordinary misconduct	Owed	Owed
Serious misconduct	Lost	Lost
Gross misconduct	Lost	Lost, and the employer may claim damages

Gross misconduct also requires an intention to harm the business. It therefore stays rare. In practice, dismissal for serious misconduct covers job abandonment, repeated insubordination, theft, violence or drunkenness at work.

The two-month rule the employer must respect

A dismissal for serious misconduct also runs against the clock: article L.1332-4 of the Labour Code sets a strict limit. The employer must start disciplinary proceedings within two months of the day they learned of the facts. After that, no sanction is possible.

Always check this point first. An employer who raises a May incident in September loses the argument, unless the conduct continues or criminal proceedings are under way.

Urgency also belongs to the definition. An employer who lets the employee work quietly for several weeks weakens their own position before the employment tribunal.

The procedure, step by step

Stage	Statutory deadline
Precautionary suspension, optional	Immediate, until the decision
Summons to the preliminary interview	Registered letter or hand delivery
Preliminary interview	At least 5 working days after receipt of the summons
Notification of dismissal	2 working days after the interview at the earliest
Maximum time to notify	1 month after the interview

The dismissal letter sets the boundaries of the dispute. It must state precise, dated and verifiable facts. A letter that merely mentions an "unacceptable attitude" therefore fails before the courts.

You may attend the interview with a colleague from the company. Where there are no staff representatives, an employee adviser listed by the prefecture assists you free of charge.

Job abandonment and the presumption of resignation

Since the law of 21 December 2022 and its implementing decree of 17 April 2023, an employer who records an unjustified absence gives the employee formal notice to return. Without a return or a justification within the set period, which cannot be shorter than fifteen days, the employee is presumed to have resigned.

That presumption changes everything: a resignation opens no unemployment rights. The Conseil d'État nevertheless ruled on 18 December 2024 that the employer keeps the option of dismissing for serious misconduct instead.

So always answer a formal notice. Sick leave, the exercise of the right to withdraw from danger and unpaid wages all count as legitimate reasons for absence, which the employment tribunal then examines.

What you lose, what you are still owed

Dismissal for serious misconduct removes two amounts: pay in lieu of notice and statutory severance pay. The contract stops at once, with no transition.

Your employer nonetheless still owes you:

• Payment for accrued holiday, including in cases of gross misconduct since a 2016 ruling of the Conseil constitutionnel.
• The salary for the precautionary suspension, if serious misconduct is not upheld in the end.
• The end-of-contract documents: work certificate, final settlement and the statement for France Travail.
• The financial consideration for any non-competition clause, unless waived in the agreed form.

Unemployment: the door stays open

Contrary to a stubborn belief, dismissal for serious misconduct does not bar unemployment benefit. France Travail does not judge the reason; it simply checks that you lost your job involuntarily.

Watch the calendar, though: without notice, benefits start earlier, but the salary also stops overnight. Our article on removal from the France Travail register then sets out your duties as a jobseeker.

Bringing a tribunal claim

You have twelve months from notification of a dismissal for serious misconduct to apply to the employment tribunal, under article L.1471-1 of the Labour Code. That period passes quickly, especially since building a file takes time.

Here the burden of proof lies with the employer. It is for them to establish that the facts are real and serious. Doubt, meanwhile, benefits the employee.

Three outcomes are possible:

• Serious misconduct falls away, but the cause remains valid. You then recover notice pay and statutory severance.
• The dismissal loses any real and serious cause. Damages are added, set by the statutory compensation scale.
• The dismissal is void, for instance after a harassment report. The scale then no longer applies.

Negotiation also remains possible before the hearing. A rupture conventionnelle, however, can no longer be signed once the letter has been sent.

When to consult a lawyer

A lawyer checks the dates first, then how precise the letter is, and finally the balance between the facts and the sanction. They also quantify what you can claim, including the unpaid overtime that so often goes forgotten. An employment lawyer answers within 20 minutes. The disciplinary procedure is set out on the digital Labour Code.