Termination by Mutual Agreement in France

It is a separate instrument of redundancies and the Protection against Dismissal Plan (PES). Conventional collective termination does not imply a search for redeployment before a voluntary resignation, does not prevent the company from recruiting freely afterwards, and can also be practiced without economic difficulties. The dismissal procedure itself can be carried out by both the employer and the employer (Court of Cases. Ploughshare. 15 January 2014). It is essential that the employee signs the dismissal agreement without external pressure (Court of Cass. Ploughshare. 16 September 2015). Only previous differences of opinion must be distinguishable from it and do not preclude the signing of a termination agreement (Cour de Cass. Ploughshare. 23 May 2013. A simple fault presupposes that the required termination is associated with an obligation to terminate. The employee continues to work during the notice period and receives all dismissal pay (severance pay, vacation pay, notice period).

Serious misconduct means that it is not possible to maintain the employment relationship and justifies the immediate termination of the contract. B, for example, an employee`s bad behaviour towards another employee or repeated and unjustified absences that disrupt the company. In this case, the employee does not work during the notice period and does not receive any compensation other than vacation pay. Gross negligence is a particularly serious violation committed with intent to harm the employer. As in the case of dismissal for serious misconduct, it deprives the employee of any compensation, with the exception of the paid holiday pay. It should be noted that gross negligence is rarely considered proven by the courts. Before signing the termination contract, the parties must meet at least once and agree on the terms, including the end of the employment relationship and the amount of the settlement. A termination agreement without prior meeting is null and void (Judgment No. 15-21609 rendered by the Social Chamber of the Court of Cassation on 1 December 2016). The residence rights of persons whose residence permit entitles them to pursue a professional activity are not affected by the termination of their employment contract. This includes people holding a temporary or multi-year residence permit “private and family life”, a residence permit “family member of a European national”, a permanent residence permit, a “talented (family) passport”, etc. Despite its success, the mutual termination agreement is not a foolproof solution and is regularly challenged before the Labour Court.

The Labour Court is competent to assess the validity of an agreement for the approved reciprocal termination of the employment contract of an unprotected worker (i.e. a worker without a mandate as a workers` representative or who has not been appointed by a trade union organisation to participate in collective bargaining, or of a worker who has not stood as a candidate in company elections) and, if necessary, to dismiss them without (“dismissal without real and serious cause”). The employee is then entitled to the severance pay and indemnity provided for in this situation. The financial consequences for the company can therefore be significant, in particular with regard to the age, seniority and personal situation of the employee concerned. Consensual dismissal can only be challenged by the employee if he proves that he did not voluntarily consent to it. Therefore, this type of dismissal is not without risk for the employer if he intervenes in the context of a conflict and in particular in the event of harassment. Under certain conditions, an agreement may be concluded between the parties after signing a notice of termination (Court of Cass. Ploughshare. 26 March 2014).

Nor does an accident at work/occupational disease prevent the signing of a dismissal agreement (Court of Cass Soc. 30 September 2014). The same applies to the signature during maternity leave (Court of Cass soc. 25 March 2015) and after the opening of the dismissal procedure (Court of Cass. Ploughshare. 3 March 2015). The agreement must contain a number of mandatory clauses, the DIRECCTE will verify in particular the existence of an “obligation to maintain employment” clause during the examination of the validation request. Subject to the conditions of validity of French civil law agreements, in particular valid consent, individual mutual termination is in principle free from pressure or constraints. Over the years, the French Supreme Court has established that a mutual termination agreement can actually be signed in a situation of conflict (2), absence due to illness or moral harassment (3), without the termination being de facto null and void.

For example, an employee who considers himself or herself a victim of harassment by his or her employer or co-worker may actually enter into a mutual termination agreement. Practical points: If an employee wishes to benefit from a consensual dismissal, especially in a difficult context, you must ask him to submit his written request to determine that the employee has initiated the process and that he has not been forced by the employer to accept such a dismissal. The services of a lawyer throughout the process are also a way to secure the process to prove that the employee has been independently advised. It is possible to conclude a contractual termination while a termination procedure has been initiated. In this case, a pre-dismissal interview may become an interview that prepares for the termination of the contract. In accordance with Articles L. 1237-11 et seq. of the French Labor Code, individual reciprocal termination agreements are currently the most effective form of amicable termination of an employment contract indefinitely. However, its apparent ease is called into question by the intervention of the French Labour Authority (“DIRECCTE”), which plays an important role in the dismissal procedure.

For example, individual dismissal under contract law is allowed by the labour inspectorate, while for workers without protected status (i.e. staff representatives such as members of the Economic and Social Committee, trade union delegates; Candidates for company elections, workers appointed by a representative union for collective bargaining, trade union defenders, etc.) it is simply approved by the Labour Authority. The figures and case law clearly show that some employees are willing to challenge the mutual termination agreement they have agreed to. As a result, the French Supreme Court is regularly invited to set the conditions for the implementation of the individual mutual termination agreement and to sanction employers. The advantage of an amicable termination for the employer is that he does not have to justify the reason for the termination of the contract. The interest for the employee is that he can benefit from unemployment benefits. Possibilities Legal action after the signing of the termination and settlement agreement Practical points: You must never conclude a settlement agreement before the termination, i.e. before the dismissal letter is sent by registered letter with acknowledgment of receipt and received by the employee, or in the absence of the employee at his home before the employee goes to the post office to retrieve the dismissal letter.

Otherwise, the settlement agreement is null and void. Be careful, in these cases of termination, the administration provides for increased controls. Dismissal may be based on personal or economic reasons. In addition, the employer and the employee may agree to terminate the contract by mutual agreement Termination is the classic way to terminate the employment contract at the initiative of the employer. There are two types of dismissals for personal or economic reasons, both of which are strictly regulated in their implementation. In recent years, a third way to terminate a contract has developed considerably: consensual termination, which allows employers and employees to agree on the conditions of termination without giving reasons. The employer may sign a breach of contract with an employee if it has considered sanctioning the misconduct. If the employee exercises his right of withdrawal from the contractual termination he has just signed, the employer may: The termination of the contract results from an agreement signed by the employer and the employee, the terms of which are set by law so that each party can accept or reject the termination. The contractual dismissal procedure may be initiated either by the employee or by the employer.

Under no circumstances may one of the parties force the other to terminate a contract of indefinite duration in this way; it is a consensual termination. A prerequisite for a termination agreement is first of all the existence of a permanent contract (CDI). After the signing of the termination agreement (or the standardized termination form) and the termination of the employment relationship, the employee is entitled to payment of the settlement amount, which cannot be less than the legal minimum entitlement to severance pay. Practical points: You have two months to initiate disciplinary proceedings as soon as you realize that one of your employees has made a mistake. However, since gross negligence and gross negligence prevent the employee from remaining in the company, you must initiate the procedure for terminating the employment contract within a limited period of time after becoming aware of the alleged facts, if no further investigation is required. The duration of this limited period is not precisely defined, but if there is an unreasonable delay in bringing an action, the court may question the actual gravity of the alleged facts. The legislator stipulates that a separation agreement, which is not a dismissal or resignation, must be concluded through a specific procedure called “conventional termination” (consensual termination), which is subject to special rules and conditions […].