Praised by employers and employees as useful tool to deliver ‘flexicurity’, the system of contractual termination of employment comes back before the Court of Cassation from time to time. On these occasions, the Court can give guidance on the precautions to be taken to safeguard the enforceability of this method of termination of permanent contracts.
Three recent judgements illustrate very concrete points to be taken into account.
1. Countdown on the withdrawal period
From the day after the signature of the contractual termination agreement by the employer and the employee, the employee has a period 15 calendar days to withdraw his or her agreement. At the end of this period, the most diligent party (i.e. whoever acts fastest) sends the termination agreement to the competent department for approval.
Given postal delivery times, for both the employer and the employee, the date of despatch of the letter (the so-called ‘despatch hypothesis’) will be used to determine whether it was sent within the stipulated 15 calendar days, regardless of whether the letter was received after the deadline (Cass. soc., 19 June 2019, n°18-22897).
2. An agreement must be drawn up in duplicate and signed by both parties…
In addition, it is essential to be able to establish with certainty the date of signature of the termination agreement by the employer and employee. If this is not possible, the withdrawal period cannot run, which renders the agreement void.
Only delivery to the employee of a copy signed by both parties to the agreement will enable him or her to request approval of the agreement and to exercise his or her right of withdrawal in full knowledge of the facts, so it is essential that the copy provided is signed by the employer (Cass. soc., 3 July 2019, n°17-14232).
3. … and each party gets a copy
Finally, a last important and essential clarification: even if the termination agreement drawn up on the Cerfa form states that it was drawn up in two copies, it must also state that each party gets both parts of the agreement (Cass. soc., 3 July 2019, n°18-14414).