Hotels, cafés, restaurants, and nightclubs are sometimes forced to take disciplinary action against their employees.
Alternatives to dismissal exist, such as warnings, reprimands, suspension, transfers, or disciplinary demotions. Dismissal should be the last resort FOR HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS.
Many dismissals for misconduct are now the subject of legal proceedings brought by employees before the Labor Court/Conseil des Prud’hommes, even though the Macron ordinances have capped the amount of damages awarded for unfair dismissal.
Therefore, HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS should exercise extreme caution when notifying an employee of a dismissal for misconduct. The main pitfalls to avoid when terminating an employment contract are as follows.
1- Hotels, cafes, restaurants, and nightclubs will ensure compliance with the following deadlines:
The probationary period in the hotel, cafe, restaurant, and nightclub sector is:
– 2 months for employees, 3 months for supervisors, and 4 months for managers
– with the possibility of renewal for the same durations (except for Level 1 employees, where renewal is not possible).
During this period, HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS may terminate the employment contract by simply sending a registered letter with acknowledgment of receipt (LRAR) without having to initiate a dismissal procedure.
The employer must respect a notice period: 24 hours in advance if the employee was hired less than 8 days ago, 48 hours in advance if they were employed between 8 days and 1 month ago, 2 weeks if they were employed for more than 1 month, and 1 month if they were employed for more than 3 months.
After the trial period, if HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS terminate the contract by simply sending a registered letter with acknowledgment of receipt (LRAR) without following the dismissal procedure, they risk being ordered to pay damages by the labor court.
This can occur, for example, when the employer believes they are still in the trial period when it has ended.
For example, they hired a Level 1, Step 1 employee on a 1-month fixed-term contract, then on a permanent contract with a 1-month trial period. The fixed-term contract period counts towards the probationary period, meaning the permanent contract cannot be terminated without following the dismissal procedure.
The dismissal procedure is as follows: the employer must issue a summons to a preliminary dismissal interview at least five clear days before the interview.
The notice of disciplinary hearing must state the employee’s right to be accompanied during this preliminary dismissal interview. This interview must not resemble an interrogation. This is why the presence of more than two people representing the employer is considered grounds for invalidating the dismissal.
HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS must respect a two-day notice period before issuing the dismissal notice, which must be sent by registered letter with acknowledgment of receipt. This disciplinary dismissal must be notified within a maximum of one month from the preliminary interview.
The dismissal letter must state the reasons for the dismissal.
Therefore, it is advisable not to state grievances that HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS cannot prove, otherwise they risk being found liable.
2. Hotels, cafes, restaurants, and nightclubs will be vigilant in choosing the reason for terminating a fixed-term contract (CDD) or a permanent contract (CDI), and in classifying the misconduct:
2-1: Termination during a fixed-term contract:
HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS may only terminate a fixed-term contract in progress after the trial period if the employee has committed serious misconduct or if it is impossible to maintain the contract (e.g., prolonged absence of the employee causing disruption to the company’s operations).
If they terminate for another reason, for example, simple misconduct after 4 months when the contract is for one year, HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS must pay the employee the remaining wages due until the end of the fixed-term contract (8 months). The same applies if HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS issue a dismissal notice for gross misconduct when, ultimately, it wasn’t!
2-2- Upon termination of an open-ended employment contract:
Employee misconduct can be characterized by an action or omission, whether intentional or unintentional.
Minor misconduct cannot justify dismissal (e.g., one or two very occasional instances of lateness). Simple misconduct can, and hotels, cafes, restaurants, and nightclubs must pay the statutory notice and severance pay.
Gross misconduct is of such a serious nature that maintaining the employee in the company is impossible. In addition, Wilful misconduct implies an intent to harm on the part of the employee (e.g., intentional damage or violence, breach of confidentiality, poaching of clients, fraud, etc.). Gross misconduct, including serious misconduct, deprives the employee of notice and severance pay, but not of accrued vacation pay.
In any case, the statute of limitations for gross misconduct is two months from the date the facts are discovered. However, when the misconduct is cumulative and continues beyond the initial incident, the latter can be considered to have occurred more than two months prior.
In cases of gross or wilful misconduct, HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS are often advised to suspend the employee immediately and even waive their notice period. Even if the establishment has no replacement, allowing the employee to continue working could be considered a waiver of the right to gross misconduct.
There is no standardized classification system for misconduct, as its classification is subjective. The classification of misconduct is assessed in light of the circumstances and the employee’s history (for example, whether they have committed misconduct previously).
HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS are solely responsible for this classification when deciding whether to dismiss an employee. The employee has one year to contest their dismissal. The classification of misconduct will be analyzed retrospectively by a Labor Court (Conseil des Prud’hommes) petitioned by the employee, which will often issue a ruling 18 months to two years later. Furthermore, each court, even each section and panel, will have its own interpretation of the misconduct.
Faced with the uncertainty of legal proceedings, HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS would be wise to seek the assistance of an experienced employment lawyer specializing in this sector to reduce the risk of a dismissal being deemed unfair and therefore being ordered to pay damages.
The lawyer will review the employee’s alleged misconduct with their clients and advise HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS on the legal classification of the offense. This will allow the HOTEL, CAFE, RESTAURANT, OR NIGHTCLUB to minimize the risk of imposing a disproportionate sanction on the employee and consequently being found liable by the Labor Court.
To try and group them together, there are faults related to non-compliance with rules or procedures, and faults related to the defective execution by the employee of his employment contract.
2-3- Misconduct:
2-3-1- Misconduct related to breaches of rules or non-compliance with procedures
The most frequent examples of serious misconduct:
– Job abandonment: the employee leaves abruptly and does not return, thus disrupting the operation of HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS
An employee who leaves their post abruptly should not be considered to have resigned, as resignation must be clear and unequivocal. A formal notice must be issued requiring justification for the absence and a return to work, but this requires time as it is necessary to wait for the employee’s response. A salary deduction may be made.
Sometimes, the employee leaves without cause, and sometimes they accuse the manager of the HOTEL, CAFE, RESTAURANT, OR NIGHTCLUB of misconduct (for example, failure to respect working hours, non-payment of overtime, etc.). In this case, they often acknowledge the termination of their permanent contract due to the fault of the HOTEL, CAFE, RESTAURANT, OR NIGHTCLUB.
There may be a time lag between their departure and when the employee sends a registered letter with acknowledgment of receipt to the HOTEL, CAFE, RESTAURANT, OR NIGHTCLUB.
In any case, the dismissal procedure must be followed (which is also more favorable to the employee in terms of unemployment benefits). If an employee has a serious grievance against HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS, it is advisable to try to resolve the issue amicably to avoid legal proceedings.
However, if the employer is not at fault in the performance of the employment contract, it is advisable not to wait for the employee to send a registered letter with acknowledgment of receipt. Hotels, cafes, restaurants, and nightclubs often find it beneficial, as soon as an employee abandons their post, to summon them to a pre-dismissal meeting with any employee who is accused of grievances in addition to job abandonment. This will help prevent the employee from resigning unfairly.
HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS will thus try to avoid unjustified claims for damages by the employee.
– Unjustified absences:
After asking the employee for the reason for the absence, and in the absence of a valid justification, hotels, cafes, restaurants, and nightclubs may deduct the absence from the employee’s salary, noting “unjustified absences as of…”.
This absence must be genuinely unjustified and disrupt the operation of the HOTEL, CAFE, RESTAURANT, OR NIGHTCLUB (e.g., customer service).
If the employee’s absence is due to a work-related accident or sick leave, THE HOTEL, CAFE, RESTAURANT, OR NIGHTCLUB CANNOT ISSUE A DISMISSAL NOTICE, EXCEPT IN CASES OF SERIOUS MISCONDUCT. IN SUCH CASES, IT IS ADVisable, though not mandatory, to wait until the end of the suspension period of the employment contract before initiating the dismissal procedure for serious misconduct. Otherwise, it may be considered that the illness or work accident was the reason for the dismissal, the dismissal may be cancelled and the HOTEL, CAFE, RESTAURANT OR DISCOTHEQUE may be ordered to reinstate (with its agreement) or pay damages to the employee.
– Aggression, insults, and denigration by an employee towards colleagues or management:
This can often happen during customer service or at a hotel reception during peak arrival and departure times, as well as in other circumstances. It is advisable to ask customers and employees for statements and to file a police report.
– Alcohol at work:
The employer has a legal obligation to ensure the health and safety of their employees and, therefore, to prohibit alcohol at work. If the employer tolerates alcohol consumption, it will be more difficult to raise this issue.
To establish serious misconduct, it is necessary to prove the employee’s intoxication and its harmful consequences (e.g., a drunk waiter who insults customers).
HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS should take care to gather witness statements. Note that employee testimonies are valid but carry less weight given their subordinate position, so other forms of evidence are required (e.g., customer statements).
The use of breathalyzer tests BY HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS must be stipulated in their internal regulations (Soc, 22/5/2002), which is mandatory for companies with at least 50 employees (Pacte Law passed on April 11, 2019). This practice is only justified for employees in positions where intoxication poses a danger (e.g., driving, operating machinery, cooking equipment for a cook). If an employee is drunk and there is no danger, they cannot be subjected to a breathalyzer test. Furthermore, this evidence will only be admissible if the employee can contest the results of the breathalyzer test.
Notification of dismissal for misconduct will still be possible.
– Drug Use or Sale:
This can happen in hotels, bars, and restaurants. For example, a bartender might have cocaine delivered and pay for it with cash from the till without the knowledge of the manager of the HOTEL, CAFE, RESTAURANT, OR NIGHTCLUB.
The question of proof is more difficult but not impossible (e.g., the presence of security cameras, customer testimonies, etc.), and if the police intervene, there will be interrogations and hearings.
In this case, HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS are advised to file a criminal complaint in addition to the dismissal. This will allow them to corroborate their evidence and distance themselves from the employee’s actions, thus preventing the manager from facing criminal proceedings and the establishment from being subject to administrative closure.
– Cash register errors:
In principle, no salary deductions are possible because financial penalties are prohibited. HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS will often find it advantageous to first issue a warning, provided it is certain that the employee made these errors. Unless the error is very serious and justifies dismissal!
– Theft by an employee:
This could involve bottles of alcohol, food, cash, or items in restaurants, bars, or hotel rooms.
In this case, if the cash register or inventory is inaccurate, the theft and its source must be proven.
Searches of employees’ lockers and changing rooms are only permitted if the company’s internal regulations allow it, and only in the presence and with the employee’s consent.
If the establishment’s cash register is accurate, the theft could involve the sale of beverages or a hotel room rental at a price higher than usual.
In all cases, however, the theft and the person responsible must be proven; otherwise, dismissal will not be justified. For example, hotels have a log of employee entries and exits in hotel rooms, which allows them to know who entered the room.
–Pimping:
This mainly concerns hotels where employees rent rooms by the hour to prostitutes without the manager’s knowledge. Here again, a criminal complaint may be filed by HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS.
– Breach of regulations, particularly those related to health, hygiene, or safety:
For example, if the head chef, who is responsible for monitoring the cold chain, including recording refrigerator temperatures and expiration dates, fails to comply, they are committing a serious offense that could endanger the health of customers.
The HOTEL, CAFE, RESTAURANT, or NIGHTCLUBS must not allow such a situation to continue, because in addition to the danger to customers, the head chef’s negligence puts the establishment at risk of receiving an administrative closure order, which is obviously detrimental to revenue.
2-3-2 Breaches of Contract Related to Employee Failure to Perform Under the Employment Contract
It is important for a HOTEL, CAFE, RESTAURANT, or NIGHTCLUBC to carefully draft the employment contracts offered to their employees, particularly regarding the following points:
* Regarding duties:
it is necessary to clearly define the nature of the employee’s duties, and in particular to attach a job description to their employment contract.
An employee is at fault for failing to comply with their job description. For example, if the HOTEL, CAFE, RESTAURANT, or NIGHTCLUBC asks its head chef to develop menus, lists or hire kitchen staff, and the chef refuses, the chef is at fault for failing to comply with their employment contract.
However, A HOTEL, CAFE, RESTAURANT, OR NIGHTCLUB cannot dismiss an employee who refuses to perform a task not stipulated in their employment contract or job description, and not agreed upon by the establishment. For example, asking a waiter to clean the rooms.
To protect themselves from such situations, hotels, cafés, restaurants, and nightclubs can draft an addendum to the employee’s contract, possibly including additional compensation for these new duties. The employee who signs the addendum will then be required to perform these tasks.
* Regarding working hours:
Hotels, cafes, restaurants, and nightclubs must inform employees of their working hours.
HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS must specify these hours in the employment contract or internal regulations, or post them or communicate them by any means. Some employers even send their employees their working hours in advance by email. Therefore, in case of lateness, the employee may be penalized (except for one or two minor instances of lateness).
Similarly, flexible working hours allow employees to work overtime in one week and make up the extra hours the following week, without having to pay overtime, provided the total working time does not exceed 1607 hours (while respecting the maximum weekly working hours: 48 hours per week or 46 hours over 12 weeks).
Even and especially within this flexible working hours framework, HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS must notify their employees at least 15 days in advance of their scheduled workdays and hours. Failure to do so cannot be held responsible for employees not adhering to these schedules. In the event of a change in hours from the planned schedule, employees must be informed 8 days in advance, or 2 days in exceptional circumstances. Otherwise, no fault can generally be attributed to the employee.
For managers, such as a head chef, a fixed-rate agreement may apply. HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS cannot, in principle, penalize a manager for not arriving at 9:00 a.m., as their working time is calculated in days (228 days) from the moment they begin performing their duties. This is why it is not necessarily in the interest of hotels, cafes, restaurants, and nightclubs to subject their staff to fixed-price agreements. Each situation must be examined individually.
* At the workplace:
HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS must specify their employees’ place of work in the employment contract or any other written document. If the employee is required to work in several establishments, this must be indicated in the employment contract or in writing (addendum, etc.). Otherwise, the employee cannot be held responsible for misconduct committed in the non-contractual establishment.
Therefore, from the drafting of employment contracts, it is advisable to seek assistance from a lawyer who regularly works WITH HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS. This lawyer will advise the manager and draft the employment contract in accordance with their social strategy and in compliance with labor law. Indeed, the lawyer, who typically works with hotels, cafes, restaurants, and nightclubs, is familiar with the types of misconduct that employees may contest during dismissal proceedings. Therefore, they will intervene proactively to prevent drafting errors in both employment contracts and the dismissal procedures, thus avoiding financial penalties.
The lawyer will also represent HOTELS, CAFES, RESTAURANTS, AND NIGHTCLUBS before the labor court (Conseil des prud’hommes).