Beware of the risks of confusion that are still too frequent.
1. The annual evaluation interview:
During an annual interview, between the employee and his employer or his supervisor, the employee’s work during the past year is generally evaluated.
A sort of assessment is made of the work accomplished, the objectives achieved or not, and then the objectives for the current year are set.
It is often also during this meeting that bonuses or increases in salary are fixed or announced.
Evaluation can take other forms such as :
- A rating system
- A division of employees into different categories
Be careful to respect the law: articles L. 1222-1 to L. 1222-5 of the Labor Code, to submit all the employees to the annual evaluation interview, as soon as an interview has been set up, under penalty of discrimination, to inform the employees beforehand of the methods and techniques of professional evaluations used, otherwise the employee could refuse to be evaluated, the methods must be objective and transparent: no discriminatory criteria, no criteria that could generate stress
The annual evaluation interview is not mandatory, so if you have never done one, you have nothing to worry about.
The employer is not obliged to give a written report to the employee, unless the collective agreement provides for it.
If a report is drawn up, the employee is not obliged to sign it. The results obtained are confidential and only the employee concerned may have knowledge of them.
The employee may not be assisted during this interview.
Finally, if personal data are recorded in a computer file, they are protected under the General Data Protection Regulation (RGPD).
This annual evaluation interview has nothing to do with the professional interview; they must not be confused, nor carried out at the same time.
2. The professional interview:
This interview, which must be held every two years, is mandatory.
It is important here to recall the provisions of Article L. 6315-1 of the Labor Code:
» I. – When an employee is hired, he or she is informed that every two years he or she will have a professional interview with his or her employer to discuss his or her career development prospects, particularly in terms of qualifications and employment. This interview does not cover the evaluation of the employee’s work. This interview also includes information on the validation of acquired experience, the activation by the employee of his or her personal training account, the contributions to this account that the employer is likely to finance and professional development advice.
This professional interview, which gives rise to the drafting of a document, a copy of which is given to the employee, is systematically offered to employees who return to work at the end of maternity leave, parental education leave, leave to be a close caregiver, adoption leave, sabbatical leave, a period of secure voluntary mobility mentioned in article L. 1222-12, a period of part-time work within the meaning of article L. 1225-47 of the present code, a long-term sick leave provided for in article L. 324-1 of the social security code or at the end of a trade union mandate. This interview may take place, at the employee’s initiative, at a date prior to the resumption of work.
II. – Every six years, the professional interview mentioned in I of this article provides a summary of the employee’s professional career. This period is assessed by reference to the employee’s seniority in the company.
This summary, which gives rise to the drafting of a document, a copy of which is given to the employee, makes it possible to verify that the employee has benefited over the last six years from the professional interviews provided for in I and to assess whether he has:
1° Followed at least one training course ;
2° Acquired elements of certification through training or validation of acquired experience;
3° benefited from a salary or professional progression.
In companies with at least fifty employees, when, during these six years, the employee has not benefited from the interviews provided for and from at least one training course other than that mentioned in Article L. 6321-2, his personal account is topped up under the conditions defined in Article L.23-13.
III. – A collective agreement at company level or, failing that, at branch level, may define a framework, objectives and collective criteria for the employer’s contribution to employees’ personal training accounts. It may also provide for other methods of assessing the employee’s career path than those mentioned in 1° and 3° of II of this article as well as a periodicity of professional interviews different from that defined in I. «
and to refer to articles L. 6323-10 to L. 6323-15 of the Labor Code relating to the implementation of the personal training account for employees.
During this interview, there is no question of evaluating the employee.
It is about:
- At the time of hiring, informing the employee that he or she will have a professional interview with the employer every two years (it is advisable to include a reminder in the employment contract)
- Every two years, to have an interview with each employee on the prospects for professional development, particularly in terms of qualifications and employment.
The employer must also inform the employee about the validation of acquired experience.
The purpose of this interview is, on the one hand, to support the employee in his or her professional development prospects (do they wish to acquire new qualifications, a change of position, a promotion, etc.) and, on the other hand, to identify his or her training needs.
Don’t forget that it is your responsibility as an employer to maintain the employability of your employees (article L. 6321-1 of the French Labor Code) and that every employee has the right to « professional qualification » (article L. 6314-1 of the French Labor Code).
As such, they must « be able to follow, on their own initiative, a training course allowing them, whatever their status, to progress during their professional life by at least one level by acquiring a qualification corresponding to the needs of the economy foreseeable in the short term« .
I can only advise you to refer to your collective agreement or to the branch or company agreements.
Furthermore, in application of article L. 6315-1 of the French Labor Code, every six years, the professional interview provides a summary of the employee’s professional career.
This summary makes it possible to verify whether the employee has:
« 1° – Completed at least one training course,
2° – Acquired elements of certification through training or validation of acquired experience,
3° – benefited from a salary or professional progression. «
The professional interview always gives rise to the drafting of a document in two copies, one of which is for the employee.
I advise you to invite the employee to the professional interview by hand-delivered letter against receipt and to attach the preparatory document for the employee.
To help you prepare for this interview, you can also follow the professional interview grid that you can get from your OpCo (formerly OPCA or on the website of the Ministry of Labor, Employment, Professional Training and Social Dialogue).
Since January 1, 2019, the professional interview must include information on the activation of the Professional Training Account (CPF), the contributions that the employer is likely to finance and on the Professional Development Council (CEP).
Please note that the professional interview must not deal with the evaluation of the employee’s work. It is therefore important to make a clear distinction between these two interviews. To avoid any confusion, it is preferable not to do them at the same time.
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Penalties
In companies with at least 50 employees, if, over a period of 6 years, the employee has not benefited from a mandatory interview and at least one non-compulsory training, the employee’s Personal Training Account (CPF) will be replenished with a lump sum of € 3,000.00. This amount will be paid to the Caisse des Dépôts et Consignation which will manage and credit the employee’s account.
In companies with less than 50 employees, there is no matching of the CPF.
However, in the event of a dispute, the employee may request that his employer be ordered to pay him damages in this respect.
Some jurisdictions have awarded €10,000.00 in damages to the employee.
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If you have never had a professional interview, I strongly advise you to organize one.
During this interview, you should take the opportunity to inform the employee of:
- the replacement of the Individual Right to Training (DIF) by the Personal Training Account (CPF); the hours previously acquired are transformed into euros at a rate of €15.00 per hour. The rights acquired under the DIF are therefore not lost and can be used until December 31, 2020;
- the possibility of using the Conseil en Evolution Professionnel (CEP);
- the need to activate one’s Personal Activity Account (CPA) with one’s login and password or via FranceConnect via the online service (https://www.moncompteactivite.gouv.fr/cpa-prive/html/).
Marie-Claude MARTIN KANDALA
KMK AVOCATS 