Actance Tribune
What's NEW under French Employment Law?
N° 30 – September 16, 2024
The mutually agreed termination of the employment contract is null and produces the effect of a resignation if the employee deceives the employer.
Under french labour law employer and employee have the possibility of terminating the employment relationship by entering into a mutually agreed termination (“rupture conventionnelle”).
Thus, after one or more meetings with the aim of discussing the principle of the mutually termination and negotiating the severance pay that will be paid to the employee (which corresponds at least to the legal or conventional severance pay), a contractual termination form is signed by the parties and submitted to labour administration for validation.
The validity of the “rupture conventionnelle” can be called into question if it turns out that the parties’ consent has been vitiated.
Both the employer and the employee may challenge the validity of the mutually agreed termination employment Tribunal if they can prove that their consent was vitiated either by fraud, error or violence.
The burden of proof lies with the party alleging the defect in consent.
In most situations, it is the employee who invokes a defect in consent and brings the case before the employment Tribunal.
A termination agreement signed by an employee who, at the time of signing, was suffering from moral harassment (Cass. soc. 29-1-2020 no. 18-24.296; Cass. soc. 1-3-2023 no. 21-21.345) or sexual harassment (Cass. soc. 4-11-2021 no. 20-16.550) has thus been challenged.
The “rupture conventionnelle” may also be declared null and void if the employer pressures the employee to accept (Cass. soc. 8-7-2020 n° 19-15.441), or if the employee suffers from a mental disorder (Cass. soc. 16-5-2018 n° 16-25.852).
In such cases, the nullity of the contractual termination has the effect of a dismissal without real and serious cause. The employee is therefore entitled to compensation in lieu of notice and damages.
While there are many examples of employees questioning the validity of a mutually agreed termination, examples of employers invoking a defect in consent are rarer.
In a decision dated June 19,2024 (Cass. soc., June 19, 2024, no. 23-10.817), the French Supreme Court (Cour de cassation) granted for the first time an employer’s request for the nullity of a mutually agreed termination of the employment contract on grounds of lack of consent, and gave this nullity the same effect as a resignation.
In this case, the employer accused the employee of having deliberately concealed his plans to set up a business in the same industry with two former employees.
The employee argued that, in the absence of a non-compete clause, he was under no obligation to spontaneously reveal to his employer his plan to set up a competing business.
The Cour de cassation ruled that the employer had been deceived, since he had only agreed to the contractual termination because the employee had indicated that he was considering a professional retraining.
The Cour de cassation therefore ruled that the employee had deliberately concealed elements which he knew to be decisive for the employer, in order to obtain the latter’s consent to the contractual termination.
In addition, the Cour de cassation ruled that the nullity of the contractual termination due to a defect in the employer’s consent should produce the effects of a resignation, thus depriving the employee of any termination indemnity and entitlement to unemployment benefits.
What written reproaches from the employer to the employee constitute a sanction?
The civil law maxim “non bis in idem« , which prohibits double jeopardy, also applies to French Labour law, and most particularly to disciplinary procedures. Thus, an employer cannot punish twice an employee for the same facts.
In light of this principle, it is essential to determine what exactly constitutes a sanction. Indeed, for employees, having any written reproaches qualified as a disciplinary sanction is generally an argument for challenging in court a more serious sanction subsequently notified to the employee, most often dismissal.
Under the French Labour Code, a punishment is defined as « ‘any measure, other than oral reproof, taken by the employer further to actions of the employee that are regarded as misconduct, regardless of the impact of such measure on the employment relationship, position, career or remuneration » (art. L.1331-1).
When the written document sent to the employee is entitled “warning” or “reprimand”, there is no difficulty in classifying it as a disciplinary sanction.
The question is more difficult when the employer addresses remarks or reproaches to the employee concerning the performance of his work or his behavior, which are not explicitly identified as a disciplinary sanction or warning.
Indeed, even a simple e-mail or text message can constitute a disciplinary sanction.
The Cour de cassation often recognizes the existence of a sanction when the employer sends a written reproach to the employee, inviting him or giving him formal notice to modify his behavior (Cass. soc. 26-5-2010 no 08-42.893; Cass. soc. 3-2-2017 no 15-11.433; Cass. soc. 29-5-2024 no 22-19.313). However, it sometimes holds that a warning asking the employee to modify his behavior only constitutes a call to order not constituting a sanction (Cass. soc. 19-9-2018 no 17-20.193 F-D ; Cass. soc. 20-3-2024 no 22-14.465 F-D : see our news of 23-6-2024).
By contrast, a simple written request for an explanation does not constitute a sanction (Cass. soc. 20-9-2023 no. 22-17.113), nor does an e-mail sent to an employee in which the employer, having taken no action against the latter, merely asks him to show respect and stop being aggressive, making moral judgments, spreading rumours and other disparaging remarks to customers and other employees (Cass. soc. 20-3-2024 no. 22-14.465).
However, case law does not identify a clear principle, so employers must exercise caution.
Thus, it is recommended that written reproaches be made outside of any disciplinary proceedings only on the condition that these facts are of less seriousness.
For facts of a certain gravity, if the employer wishes to notify a more severe sanction than a written warning, it is preferable to comply with the disciplinary procedure by summoning the employee to a preliminary interview and notify the sanction by registered mail or delivered in person.