Unfair Dismissal Compensation: When a Promise of Employment Binds the Employer

Picture the scene: you are the owner of a building in Mayenne, and you hire a caretaker, with a three-month probationary period. After two months, you entrust him with managing rents and welcoming tenants. He invests himself, you lead him to believe he will be confirmed in post. Then, the day before the probationary period ends, you dismiss him, without explanation. Is this legal? The question that every employer and every employee asks. What does the French Supreme Court answer? That such a dismissal may be unfair, even during the probationary period, if the employer created a legitimate expectation.

This case, decided in 1978, concerns a bank employee in Bordeaux, but its principle applies everywhere, including in Mayenne or Saint-Berthevin. It reminds us that the freedom to terminate a probationary period is not absolute: as soon as the employer leads the employee to expect confirmation and entrusts responsibilities, he must justify the dismissal by a genuine and serious ground.

The facts: a story like many that happen every day

On 2 May 1974, a bank hired a stenographer-typist at its Bordeaux branch, with a probationary period. Very quickly, she was admitted to a training period and entrusted with responsibilities: she replaced regular writers, handled important files. The employer led her to believe, by correspondence and during interviews, that she would be confirmed. But on 2 January 1975, when she was on the verge of confirmation, the bank dismissed her. Why? Officially, she had received a reprimand following a conflict with a colleague. But the employee contested: according to her, it was merely a pretext.

She brought the matter before the Bordeaux employment tribunal, which ruled in her favour: the dismissal was unfair. The bank appealed, but the court of appeal confirmed. Plot twist: the bank appealed to the Supreme Court. It argued that the probationary period allowed it to terminate freely, without grounds. The Supreme Court dismissed the appeal: the promise of confirmation, together with the responsibilities entrusted, made the dismissal unfair.

This story is reminiscent of that of Mr. Dupont, a property owner in Saint-Berthevin, who hired an employee to manage his seasonal rentals. After two months of probation, he entrusted him with the keys to all the flats and promised a permanent contract. The next day, he dismissed him without reason. Result: a finding of unfair dismissal, with €6,000 in damages.

The reasoning of the court — analysed

The Supreme Court relies on a simple principle: abuse of right (Article 1240 of the Civil Code, which requires reparation for damage caused by fault). Even though the probationary period allows termination without grounds, the employer must not abuse this right. In this case, three elements characterise the abuse:

• Hiring on a training basis with responsibilities: the employee was no longer performing simple stenographer-typist tasks; she replaced regular writers. This shows that she was considered capable of the job.
• The promises of confirmation: by letter and orally, the employer led her to believe she would be confirmed. This created a legitimate expectation.
• The timing of the dismissal: the termination occurred just before confirmation, suggesting an arbitrary decision.

The Court specifies that the lower courts have full discretion in assessing these elements. It does not call into question the freedom to terminate the probationary period, but it limits its excesses. Legal basis: the former Article L. 122-14-3 of the Labour Code (now L. 1232-1) provides that any dismissal must be based on a genuine and serious cause. Here, the bank did not prove that the reprimand justified the dismissal.

What the judges did not say: they did not prohibit dismissal during the probationary period. They only required that, if the employer led the employee to expect confirmation and entrusted responsibilities, he must give reasons for his decision. No change of direction, but a confirmation of the balance between freedom and loyalty.

What this means for you — concretely

For the employer (landlord, company manager): you can no longer terminate a probationary period without grounds if you led the employee to believe in confirmation. Concrete example: in Mayenne, a landlord hires a caretaker for €1,800 net per month. During the probation, he entrusts him with managing rent receipts and supervising works. He says: 'If all goes well, we'll sign a permanent contract.' After three months, he dismisses him for 'non-compliance'. The caretaker brings an employment tribunal claim. Risk: 6 months' salary in damages (i.e. €10,800). If you are in this situation, you must either prove gross misconduct or wait until the end of the probation and not have created an expectation.

For the employee: if you are on probation and are entrusted with unusual responsibilities, or if you are promised a permanent contract, keep evidence (emails, letters, witnesses). Example: in Laval, a salesperson hired with a promise of confirmation after 4 months was given a client portfolio. Dismissed at 3 months, he obtained €8,000. Time limit: you have 12 months to bring a claim before the employment tribunal.

For the co-owner: if you hire a voluntary syndic or a building employee, the same rules apply. Do not make promises lightly.

Four tips to avoid this type of dispute

• Do not make written or oral promises of confirmation before the end of the probationary period. If you do, be aware that you are committing yourself morally and legally.
• Limit the responsibilities entrusted during probation. If the employee does the same work as a permanent employee, you create the appearance of a definite contract.
• Always give reasons for terminating probation by registered letter with precise reasons (incompetence, absence, etc.). Not giving reasons may be interpreted as abuse.
• Keep all written exchanges (emails, notes) showing that you did not lead the employee to expect confirmation. In the event of a dispute, these will be your best defence.

Further reading: related case law and developments

This 1978 decision was confirmed by a more recent Supreme Court judgment of 20 March 2013 (n° 11-28.407): termination of the probationary period may be unfair if the employer engaged in wrongful conduct (promise, excessive trust). Courts are increasingly vigilant. Trend: there is a strengthening of employee protection during the probationary period, especially in positions of responsibility. Conversely, some courts of appeal remain more liberal, considering that the probationary period remains a test. But the majority trend is towards limiting abuse.

For the future, the 2016 labour law provided that the probationary period may be renewed by collective agreement, but this does not affect the principle of good faith. To remember: the 1978 case law is still relevant, and even strengthened.

Checklist before taking action

FAQ: 5 questions to know if you are affected

1. My employer promised me a permanent contract at the end of probation, then dismissed me without reason. Can I take action? Yes, if you have evidence of the promise (email, witness). Bring a claim before the employment tribunal within 12 months.
2. Can I terminate the probation of an unsatisfactory employee without a written reason? Yes, if you did not lead him to expect confirmation. Otherwise, it is better to give reasons.
3. What damages can I obtain? Generally, 3 to 6 months' salary, depending on the responsibilities entrusted and the length of probation.
4. Does the decision apply in Mayenne and Saint-Berthevin? Yes, the case law is national. The Laval employment tribunal applies it regularly.
5. What should I do if I am a landlord and my caretaker claims compensation? Consult a lawyer immediately. Do not negotiate alone without knowing your rights.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →