On 21 September the Toulouse Court of Appeal held that an appraisal process which was based partly on behavioural criteria was illegal.
In this case, the appraisal system had been put into place by the company Airbus and required the appraiser to assess how far the means used by employees to achieve their targets were consistent with its values, as set out in the internal company document “The Airbus Way”. These values included a provision “Agir avec courage”, i.e. to act “resolutely” or “boldly”.
The scheme said that this meant: “To build on, understand and share the long-term vision of Airbus in a meaningful way and to act in accordance with that vision • To make fair, bold decisions in the interests of Airbus and to assume full responsibility for the consequences • To apply the ‘SMART’ [Specific & controllable, Measurable, Achievable, Realistic & ambitious, Timely] policy and its objectives.”
While noting that “having appraisal criteria which are based on behaviour is not illegal a priori”, the Court stated that some of the behaviour which Airbus appeared to be requesting did not comply with the spirit of Article L.1222-3 of the French Employment Code. Article L.1222-3 states that the methods and techniques used for evaluating employees must be relevant to the corporate aim which is being pursued.
The Court stated that the Airbus provisions, and in particular the first (“to act resolutely”) which has a moral connotation, were so vague that it was not possible to establish a direct relationship between them and an identifiable professional activity. They required the appraiser to make an assessment which was too subjective and they were sometimes far-removed from their purpose, which was to measure the professional skills of the employees. Although no compensation was awarded, Airbus was obliged to suspend the appraisal process and revise its criteria to link them more directly to the required professional skills.