The information in this note is current as of April 3, 2020, but may change in particular depending on the publication of a forthcoming circular from the General Directorate of Labor.
2) Consequences of Ordinance No. 2020-306 of March 25th, 2020 for conventional ruptures
Recall that after at least one interview, as part of a contractual termination, the employer and the employee agree to terminate by mutual agreement their employment contract (article L. 1237-11 and following of the labor code).
They sign the CERFA conventional termination form which is available online.
The signing of the contractual termination makes the starting point of the withdrawal period of 15 calendar days.
At the end of the withdrawal period, the most diligent party sends the conventional rupture agreement to the DIRECCTE.
The DIRECCTE has an instruction period of fifteen working days, from the receipt of the request, to ensure the freedom of consent of the parties.
In the absence of notification within this period, the approval is deemed to have been acquired and the employment contract is terminated the day after the end of the withdrawal period.
We must distinguish 3 cases.
2.1) Conventional rupture (Rupture conventionnelle) signed after February 25th, 2020: no homologation
If the contractual termination was signed after February 25th, 2020, the withdrawal period being extended by article 2 of ordinance n ° 220-306 of March 25th, 2020, the Administration (DIRECCTE 75) indicates that it does not can no longer be approved.
The withdrawal period (droit de retractation) will end 15 days after the end of the protected legal period (the date is fixed at June 24, 2020 but it can be modified).
The Administration advises to send DIRECCTE a new request for homologation of a contractual breach after the end of the protected legal period (i.e. June 24, 2020 unless the date is changed).
2.2) Conventional rupture (rupture conventionnelle) signed before February 25, 2020 inclusive and approval request filed before February 22nd, 2020 inclusive
If the contractual termination was signed before February 25, 2020 inclusive and the homologation request was submitted to the administration (by registered mail or via the TéléRC website) before February 22, 2020, it has been the object tacit approval within 15 days of filing.
The employment contract can therefore be terminated on the scheduled date.
2.3) Conventional rupture (rupture conventionnelle) signed before February 25th, 2020 inclusive and approval request filed after February 22nd, 2020 inclusive
If the contractual termination was signed before February 25, 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 the Ordinance).
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 24, 2020 , date of the end of the protected legal period (the date is fixed at June 24, 2020 but it can be modified).
In view of the above, it is not possible to have conventional ruptures signed after February 25th, 2020 approved.
The parties will have an alternative:
- Postpone the signing of the contractual breach and send a new approval after June 24th, 2020 (provided that the end of the state of health emergency is not delayed);
- initiate a dismissal procedure and conclude a transaction. Recall that the contractual termination is an autonomous mode of termination of the employment contract and does not put an end to all litigation (unlike the transaction).
A rapid clarification of the position of the Labor Administration is necessary.
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Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
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