The rupture conventionnelle homologuée is a termination of the employment contract by mutual agreement introduced in 2008. It is subject to a very strict formal rules (requiring in particular compliance with specific timeframes, and ratification by the labour administration).
Case law is usually fairly strict towards employers, but it is not always the case. In three decisions dated 29 January 2013, the French Supreme Court displayed leniency towards employers with respect to some irregularities in the rupture conventionnelle homologuée procedure. In these cases, three former employees challenged the rupture conventionnelle homologuée they had entered into with their employer, claiming that such agreements were void due to failure to comply with specific formalities:
- In the first case, the employee claimed that the date indicated on the rupture conventionnelle homologuéeform as corresponding to the expiration of the period during which the employee is entitled to withdraw from the agreement was inaccurate. In this respect, under French law, the parties are entitled to a 15-calendar day period during which they can withdraw their consent to the rupture conventionnelle homologuée running from the date of signature of the agreement, and it is only after the expiry of such timeframe that the agreement can be sent to the labour administration to request its authorisation. The employer indicated on the agreement an inaccurate date (the date being set prior the expiry of the withdrawal period). However, the agreement was actually only sent to the labour administration after the expiry of such withdrawal period. The mistake made by the employer when filling out the agreement had therefore no harmful consequence on the ability of the employee to withdraw his consent to the agreement. The French Supreme Court therefore refused to consider the termination null and void on this ground.
- In a second case, the employee indicated that his employer did not inform him that he had the ability to be assisted by an external advisor during the negotiation meeting prior to the signature of the rupture conventionnelle homologuée. In this respect, the French Employment Code authorizes the employee to be assisted during the negotiation meeting(s) prior to the signature of the termination agreement (the person assisting the employee being either a member of the staff of the company, or an external advisor whose name appears in a public list, depending on the circumstances). However, the French Employment Code does not expressly require the employer to inform the employee of such possibility, which seemed to be a valid argument for the French Supreme Court, when it decided to reject the claim of the employee on this basis.
- In a third case, the employee relied on the fact that the employer did not inform him of the ability to contact the French unemployment authorities in order to discuss his professional career during the procedure. Even though this requirement is not set in the French Employment Code, it is mentioned in the forms issued by the French administration to be used in the context of the rupture conventionnelle homologuéeprocedure. Once again, the French Supreme Court rejected the claim of the employee, considering that non-compliance with this formality could not affect the employee’s consent to the termination.
The French Supreme Court has therefore seemed to soften its position with respect to rupture conventionnelle homologuée procedures. However, these terminations remain very formalistic and it is preferable to comply very cautiously with the provisions of the French Employment Code and the recommendations of the labour administration in order to forestall a potential refusal by the administration.