French employment law - Employees, Managers, and Executives: A Survival Guide for Negotiating Your Termination Agreement (rupture conventionnelle)

Terminal termination agreements (ruptures conventionnelle) were created 17 years ago by the law of June 25, 2008, modernizing the labor market.

Approximately 42,000 termination agreements are signed each month.

Terminal termination agreements are a method of terminating an employment contract without cause.

Unlike dismissal, the employer does not have to provide a real and serious reason to terminate the employment contract.

Terminal termination agreements are often misused by employers who want to avoid dismissal proceedings with the associated legal risks.

In practice, employers almost always attempt to negotiate a termination agreement before initiating dismissal proceedings.

We note that in 50% of cases, termination agreements are disguised dismissals.

So how can you avoid being taken advantage of when signing a termination agreement?

This survival guide for employees gives you some tips for negotiating your termination agreement as effectively as possible.

1) What is the legal amount to negotiate without getting ripped off?

The most important thing to negotiate is the amount of the specific termination agreement compensation.

1.1) At a minimum, you must receive a specific termination agreement compensation equal to the legal or contractual severance pay (Article L.1237-13 of the French Labor Code).

You can calculate it using the free online severance pay calculator provided by the Ministry of Labor, which can be viewed via the following link: Calculate severance pay.

1.2) Negotiate a statutory severance pay including the following amounts:

- Compensatory notice pay (from 1 to 3 months depending on your status and seniority) and the related paid leave (10% of the gross notice period);

- Compensation for dismissal without cause, as defined in Article L. 1235-3 of the French Labor Code, or the Macron scale.

For example, if you are a manager with 5 years of seniority (excluding a more favorable collective bargaining agreement), you can request: 1.25 months (statutory severance pay) + 3 months (notice) + 6 months (Macron scale ceiling), for a total of more than 10.5 months' salary as severance pay.

If you are a manager with 10 years of seniority (excluding a more favorable collective agreement), you can request: 2.5 months (statutory severance pay) + 3 months (notice period) + 10 months (Macron scale ceiling), i.e. a total of more than 15.5 months of salary as severance pay.

Indeed, since a mutual termination agreement is often a constructive dismissal, you must negotiate the compensation you could have received in the event of a conviction for dismissal without real and serious cause.

Furthermore, if you have been the victim of harassment or discrimination, or if you have worked overtime, you will need to request the corresponding compensation (see our article "How much should you negotiate your mutual termination agreement after the Macron decrees?").

You should also pay attention to the following points:

- The termination date (which must take into account the 15-day cooling-off period);

- Certain contractual clauses such as the non-compete clause or the training compensation clause. If your employer does not expressly waive them, you will still be required to comply with these clauses;

- Or certain benefits you have received, such as the company vehicle and accommodation, or the computer equipment made available to you.

The fate of these elements must be addressed in the mutual termination agreement.

2) Can I refer the matter to the Labor Court after signing the mutual termination agreement?

Yes.

It is possible to refer the matter to the Labor Court to obtain payment of unpaid overtime, back pay, non-compete compensation, etc.

Indeed, a mutual termination agreement does not end all disputes, unlike a settlement agreement.

However, it will be very difficult to challenge the mutual termination agreement before the Labor Court and have it reclassified as a dismissal without cause, except in cases where the mutual termination agreement was entered into in the context of moral or sexual harassment, or a defect in consent.

Please note: To avoid any risk of litigation, employers require employees to sign, in addition to the mutual termination agreement, a settlement agreement that ends any dispute.

In this case, the settlement agreement precludes you from taking action before the Labor Court.

To read all the Article, please click on the link below

https://consultation.avocat.fr/blog/frederic-chhum/article-2971370--french-labour-law-employees-managers-and-executives-a-survival-guide-for-negotiating-your-termination-agreement-rupture-conventionnelle.html

Sources:

Salariés, cadres, cadres dirigeants : combien négocier sa rupture conventionnelle après les ordonnances Macronhttps://www.village-justice.com/articles/salaries-cadres-cadres-dirigeants-combien-negocier-rupture-conventionnelle,27827.html

https://www.service-public.fr/particuliers/vosdroits/R31493

 https://www.service-public.fr/particuliers/vosdroits/F19030

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

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

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