France – COVID 19 and  “Rupture conventionnelle “ : can you sign a rupture conventionnelle during the confinement period of the Coronavirus?  French Employment law  CHHUM AVOCATS (Paris, Nantes, Lille)

2) Conventional rupture signed before February 25th, 2020 inclusive and approval request filed before February 22nd, 2020 inclusive

If the contractual termination was signed before February 25th, 2020 inclusive and the approval request was submitted to the administration (by registered mail or via the TéléRC website www.teleRC.travail.gouv.fr) before February 22nd 2020, it was the subject of a tacit approval within 15 days of its filing.

The employment contract can therefore be terminated on the scheduled date.

3) Conventional rupture signed before February 25th, 2020 inclusive and approval request filed after February 22nd, 2020 inclusive

If the contractual termination was signed before February 25th, 2020 inclusive and the approval request was submitted to the administration (by registered mail or via the TéléRC website) after February 22, 2020, it will not be subject to tacit approval due to the suspension of the investigation periods (article 7 of ordinance n ° 2020-306 of March 25, 2020).

It could nevertheless be the subject of an express authorization on the part of DIRECCTE; the most diligent party may send DIRECCTE 75 the following elements by email:
o the rupture form (cerfa);
o proof of deposit (scanned acknowledgment or teleRC);
o the registration number in TéléRC;
o An email address of each party to whom the approval decision must be sent (employer and employee).

If no express approval decision was taken, the tacit approval of the rupture will take place at the end of the instruction period of 15 calendar days which is suspended from March 12, 2020 and which will resume from June 24th, 2020 , date of the end of the legal period protected (the date is fixed at June 24th, 2020 but it can be modified).

4) Conventional rupture signed between February 25th, 2020 and April 25th, 2020

4.1) 15 days right of withdrawal (droit de rétractation)

If the contractual termination was signed after February 25, 2020, the withdrawal period of 15 days is not extended following Article 2 of Ordinance n° 2020-427 of April 15, 2020.

Therefore, the parties have a period of 15 calendar days to exercise their right of withdrawal which runs from the date of signature of the agreement.

This right of withdrawal is exercised in the form of a letter sent by any means attesting to its date of receipt by the other party (art. 1237-13 of the labor code).

4.2) Between February 25th, 2020 and April 27th, 2020: Express / explicit approval of the “rupture conventionnelle” by the DIRECCTE

The investigation period for the homologation of the “rupture conventionnelle” was suspended in application of article 7 of ordinance n ° 2020-306 of March 25, 2020 until the decree of April 24, 2020.

The suspension of the time taken to examine the request for approval of the breach of contract did not deprive the DIRECCTE of formulating an explicit decision of approval could take place during the period of the state of health emergency increased by one month.

An explicit homologation, like a refusal of homologation, could thus be notified to the employer and the employee concerned during this period (see press release from the Normandy DIRECCTE of April 27, 2020
http://normandie.direccte.gouv.fr/Coronavirus-COVID-19-Homologation-des-ruptures-conventionnelles).


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Sources:

. Ordinance N° 2020-427 of April 15th, 2020
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041800899&categorieLien=id

. Ordinance N° 2020-306 of March 25th, 2020
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041755644

. Decree N° 2020-471 of 24 April 2020 derogating from the principle of suspension of time limits during the period of health emergency linked to the epidemic of covid-19 in the field of work and employment
https://www.legifrance.gouv.fr/eli/decret/2020/4/24/MTRZ2010186D/jo/texte

. Homologation des ruptures conventionnelles – Communiqué DIRRECTE de Normandie du 27 avril 2020
http://normandie.direccte.gouv.fr/Coronavirus-COVID-19-Homologation-des-ruptures-conventionnelles

. Service de saisie d’une demande d’homologation d’une rupture conventionnelle
www.teleRC.travail.gouv.fr

Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
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