Redefining workplace performance: Should optimism, integrity, and common sense be used as criteria?

9 December 2025 6 min read

At a glance

In a decision of 15 October 2025, the French Supreme Court ruled on incorporating behavioural criteria into employee performance reviews.
While employers can use their discretion, this must be exercised using objective and relevant criteria.
Subjective concepts such as optimism, integrity or common sense do not meet these requirements in the absence of measurable indicators.
Their use risks discrimination, particularly in the context of redundancy/social plans, when professional attributes are used as a criterion for selecting employees.

In a decision dated 15 October 2025, the French Supreme Court (Cour de Cassation) had the opportunity to rule on the following question: can behavioural criteria be taken into account when assessing employee performance?

Assessment methods must be submitted to the Works Council (the Social and Economic Committee) (CSE) for prior information and consultation, but above all they must be based on objective criteria that are relevant to the intended purpose, namely assessing the professional skills of employees.

In this case, the employer implemented an Individual Development Interview (EDI) procedure comprising a section on assessment of work and objectives and a section on assessment of employees' 'group behavioural skills'.

The assessment forms included the following items:

'Commitment' / with a sub-category 'Perseverance': 'Demonstrate optimism'.
'With Simplicity' / with a sub-category 'Transparency': 'Act and communicate honestly with superiors and colleagues', and a sub-category 'Be pragmatic': 'Be practical and demonstrate common sense'.

Employer has a power of assessment: but with objectively measurable criteria

The employer argued that the assessment of 'behavioural skills' was relevant because an employee's professional performance cannot be limited solely to their technical skills or 'business' knowledge. It must also cover a set of essential behavioural skills, such as adaptability, the ability to integrate into or lead a team, and the potential to progress to other roles.

It is this combination that allows the employee's professional skills to be fully assessed. Of course, it is debatable whether behaviour is a skill rather than an aptitude or a quality, acquired or innate, but in any case, and regardless of the term used, it is a matter of evaluating the employee in their role.

The employer added that the criterion of assessing an employee's ability to 'be practical, active and efficient while demonstrating common sense' met the requirements of clarity, precision, and relevance, since it directly targeted the assessment of their effectiveness at work.

It is accepted that managerial functions, for example, require behavioural skills such as listening, communication, leadership, and emotional management, which have a direct impact on collective performance and the social climate. And for certain managerial functions, deficiencies in this area may amount to professional incompetence.

Because standard assessment tools do not cover these aspects, the implementation of an EDI offers a more comprehensive approach. It makes it possible to assess people’s skills in a professional environment, evaluate managerial qualities over time and even help prevent psychosocial risks by identifying early signs of tension.

However, and quite logically, in its decision, the Cour de Cassation points out that while their managerial authority gives employers the power to evaluate staff, the criteria they use must be precise, objective, and relevant. In this case, the EDI system, based on concepts such as optimism, integrity and common sense, did not meet these requirements.

Taking these subjective and variable concepts into account does not guarantee the impartiality required, unless they can be measured objectively, which was not demonstrated in this case.

The judges also noted that it was not possible to know to what extent the numerous behavioural criteria and sub-criteria were taken into account in performance assessments, nor whether their implementation actually resulted in 'a certain form of balance with the purely technical assessment criteria'.

What are the implications for economic redundancies and social plans?

By analogy, these considerations can be extended to the delicate issue of assessing 'professional qualities', which is one of the legal criteria used to decide the order of economic dismissals for impacted job categories. In the case of a social plan, when granting its approval the Labour Administration inevitably focuses on the objective nature of an assessment of professional qualities and the weight given to this criterion. The administrative court has already approved the use professional evaluation results to assess 'professional qualities'.

Aside considerations of the separation of powers, given the decision of 15 October 2025, it is doubtful that the Labour Administration and Administrative judges will agree to consider, for example, optimism and common sense as objectively measurable criteria as these would in effect give an employer complete latitude to 'favour' any employee of their choice.

So, it is likely to remain the case that an employer will have to demonstrate to the Labour Administration the reason why a particular behavioural skill is relevant and should be prioritised. That is to say, where a company is facing economic difficulties and/or a need to safeguard competitiveness, it will have to show that the required skill will ensure it retains the employees best able to work towards its goals.

The employer will also have to show that any particular behavioural skill it uses to define 'professional qualities' is objectively measurable. This is likely to be a challenging task but could use pre-existing indicators, such as, for managers, the results obtained from their team during 360° evaluations, membership rates, or well-being/quality of working life scores.

The path is narrow but not closed.

The scope becomes wider when a social plan is implemented through a majority collective agreement signed with the company's trade union representatives. Here, the Labour Administration’s authority to validate the plan is strictly limited to preventing discrimination. Social dialogue that is closely aligned with the company's own situation and needs takes priority.

But, it is still necessary to obtain approval from a majority of the trade union representatives who will be mindful of their audience and might be reluctant to sign a collective agreement setting social plan terms with subjective criteria that allow the employer to make 'their choice'. Everything will therefore be a question of balance in every sense of the word.

It is also likely that the Labour Administration and the Administrative judges will remain vigilant. They are likely to want to retain leverage when it comes to subjective criteria that could lead to discrimination Note though that a criterion, however subjective or debatable/inventive it may be, is not necessarily discriminatory in itself. Two recent Court cases illustrate that the discriminatory nature of subjective criteria in a collective agreement in the context of a redundancy plan will be assessed on a case-by-case basis:

Court of Appeal of Nîmes, 13 May 2025, No. 23/02878: an employee disputed her dismissal on the grounds of discriminatory application of criteria. In particular, the criteria of 'availability' and 'efficiency' had been used to assess her professional qualities, and these had been evaluated during a period of illness. The Court noted, on the one hand, that the employer had provided no evidence of the objectivity of these sub-criteria and their non-discriminatory nature and, on the other hand, that their overwhelming weighting showed that it had not taken all the criteria into account. The Court therefore found that the employer had penalised the employee's sick leave by giving her a negative rating on subjective criteria, which indirectly constituted discrimination based on her health.
Administrative Court of Bordeaux, 10 March 2025, No. 2407781: the claimants challenged the weighting and subjectivity of criteria such as responsiveness, team spirit, and motivation. They said these penalised employees on sick leave or who had not received training. The Court analysed the specific individual situations and concluded that 'this allegation is not corroborated by any of the situations cited as examples by the applicants (...). Consequently, the argument that the weighting of the criteria used in the agreement would lead to indirect discrimination on the grounds of age, family situation or disability (...) must be dismissed.'

In conclusion, to set performance criteria that meet the requirements for legal certainty and impartiality and that recognise a diversity of skills, it is important to act fairly and to engage in consultation about the criteria.