To set up a "rupture conventionnelle", it is essential that both parties (employer and employee) agree. The employer cannot impose this decision on the employee, and vice versa. In the absence of agreement between these two parties, it is forbidden to establish a conventional termination.
According to the January 29, 2020 Court of Cassation ruling, if the employee signs the agreement while in a situation of moral violence, this procedure will be nullified. Here, the violence may be due to moral harassment and related disorders.
What's more, if the "rupture conventionnelle" is concluded under fraudulent conditions, the amicable departure will not be validated. If it is made with the aim of circumventing the guarantees provided for the employee in terms of economic redundancy, it cannot be authorized. The procedure will also be invalidated if the employee proves that he or she signed it without freely giving consent. For example, an agreement to terminate an employment contract signed when the employee is under pressure cannot be taken into account.
The "rupture conventionnelle " must be signed in compliance with the law so that you can benefit from back-to-work assistance (ARE) or the creation of your project.
To achieve a "rupture conventionnelle", it is necessary to respect each step of the procedure. This is very important, as the "rupture conventionnelle" may be refused if the procedure is not followed. Here are the 5 essential steps.
The conventional termination letter
The contractual termination letter must be written by the person wishing to terminate the employment contract. It must contain his or her identity and contact details. In addition, the letter of termination must mention :
- company name,
- the start date of the employment contract,
- the desired end date.
It must also mention article L. 1237-11 of the French Labor Code. The letter can be hand-delivered to the addressee (employee or employer) or sent by registered post with acknowledgement of receipt.
The preliminary interview
Once the parties have received the contractual termination letter, a preliminary meeting is organized to discuss the matter. If the employee and employer so wish, they may be assisted during the interview.
The contractual termination agreement
When both parties are in agreement, it is necessary to formalize this consent by drawing up a conventional termination agreement. This document lays down the conditions for terminating the employment contract within a company or any other structure that takes on employees. The agreement must be drawn up by the employer and signed by both parties.
It must also be sent to the Direction départementale de l'emploi, du travail, des solidarités et de la protection des populations (DDETSPP). The request for homologation must also be sent by the employee or employer via the TéléRC teleservice, together with a copy of the termination agreement.
Validation of the contractual termination
If, after 15 days, the labor inspectorate does not respond to the request for homologation of the "rupture conventionnelle", its silence is considered as validation of the procedure.
End of employment contract
If the contractual termination is approved, the employee's employment contract is terminated on the agreed date. If approval is refused, the DDETSPP will give the reasons for its decision.
Employees on permanent contracts benefit from a specific indemnity for breach of contract. The amount of this indemnity is negotiated between the two parties, and is often based on the employee's seniority and salary. To estimate the cost of this indemnity, an employee can use a simulator to calculate the indemnité spécifique de rupture conventionnelle. However, this cannot be less than the legal severance pay.
In addition, if an employee leaves the company before taking all the paid leave to which he or she is entitled, he or she is entitled toa paid leave indemnity. The employee is also entitled to unemployment insurance benefits.
In addition, the employer must provide the employee with a certificate of employment, a Pôle emploi certificate, etc. The employee does not benefit from any notice period in the case of a conventional termination. He may, however, negotiate this notice period with his employer.
After a "rupture conventionnelle", an employee can set up his or her own business or look for work in another company without difficulty.
Once the agreement has been signed, the employee and employer have a 15-day right of withdrawal. This period begins on the day following the date on which the document is signed. If the 15th day is not a working day, the period is extended by one working day.
To cancel the procedure within this timeframe, you need to send a letter of withdrawal to the employer or employee. To be sure that the recipient has received your letter, deliver it by hand or by post with acknowledgement of receipt.
Written by our expert Editorial staff
March 31, 2023
