Under French law, there are various ways in which an employment contract may be terminated: resignation, dismissal, redundancy, amicable termination and so on. There is also a category of termination which is similar to a claim for constructive dismissal but where the employee does not resign and remains employed by the Company. This can happen where the employee believes the employer has breached the employment contract and applies to the Employment tribunal for a declaration of termination of the employment contract. An employee may do this whilst remaining in employment and continuing to perform the employment contract. If the breach by the employer is sufficiently serious, the tribunal will make a declaration that the employment contract has been terminated and this will have the same consequences as an express termination of the contract by the employer.

In a particular recent case before the tribunal, the employee argued that on return from her absence due to a work-related accident, the employer gave part of the duties of her role to other employees. Accordingly, the employee believed that the employer had breached the contract and filed a claim for a declaration of termination of the employment contract. By the date of the judge’s decision, however, the employee was once again performing all of the aspects of her role. The French Supreme Court ruled in favor of the employer and did not make the declaration.

The French Supreme Court decided that the tribunal should determine whether the alleged breach by the employer was sufficiently serious to justify a declaration that the employment contract had been terminated as of the date of the tribunal’s decision. In the case in question, the alleged breach by the employer was no longer continuing on the date of the tribunal’s ruling.

In the light of this decision, where a claim is made for a declaration that the employment contract has been terminated, the employer has an opportunity to remedy the alleged breach at any time up to the date on which the tribunal’s decision is made. (Cass. soc., January 29 2014, n°12-24.951)