Contractual Termination (Rupture Conventionnelle) Is Invalid in France Unless Signed Copy Given to Employee

France’s Court of Cassation issued two judgments on July 3, 2019, concerning the validity of a contractual termination (rupture conventionnelle). These demonstrate that it is essential to give an employee a copy of the agreement (n° 18-14.414) and that this copy must be signed by both parties (n° 17-14.232) in order to be able to invoke the right of retraction and request the approval of the agreement (Cass. soc., 3 July 2019, n° 18-14.414 (FS – P+B) and Cass soc., 3 July 2019, n° 17-14.232 (FS – P+B)).

Procedure for contractual termination

An employer and employee can mutually agree on a termination of an employment contract under conditions provided for by the French Labor Code. The contractual termination is subject to the following procedure:

1. The parties agree to terminate the employment contract during one or more interviews, during which the employee and the employer may be assisted.
2. A contractual termination is then concluded by the parties in three original copies (one for each of party and one for the French Labor Authority).
3. A cooling off period of 15 calendar days begins on the date both parties sign the agreement, during which time either party can cancel the agreement.
4. One of the parties must then send or hand-deliver the third original copy to the French Labor Authority.
5. The French Labor Authority then has 15 working days to approve the agreement. In the absence of an answer (which is usually the case), the approval is deemed to have been granted.
6. The employment contract is terminated on the date provided for in the contractual termination (rupture conventionnelle), which cannot take place before the day following the date of approval of the cancellation by the French Labor Authority.

This procedure is very important because not following one of these steps may lead to the contractual termination being nullified, as deemed by the Court of Cassation.

Provision of an exemplar to the employee and the importance of signature by both parties

In the first case (n° 18-14.414), the employee and the employer had signed a contractual termination of the employment contract. However, the employee considered that this agreement was invalid because he did not receive a copy of it. The Court of Appeal of Paris had rejected the employee’s claim on the grounds that the agreement mentioned that it had been made in two copies, which presumed that the parties had each received one copy. According to the Court of Cassation, the Court of Appeal ruled “without finding that a copy of the contractual termination had been given to the employee.” The judgment was then broken and annulled for violation of the French texts.

In the second case (n° 17-14.232), following the signature of a contractual termination between the two parties, its validity was questioned by the employee because the employer didn’t sign the copy given to the employee. According to the Court of Appeal, this missing signature did not invalidate the contractual termination because the employee still retained a rescission right. However, the Court of Appeal’s judgment was overturned by the Court of Cassation, which ruled that “only the handover to the employee of an exemplar of the contractual termination signed by both parties allow him to claim the approval of the agreement and to apply his right of retraction with a full knowledge.”

Employers may want to be vigilant. Indeed, one cannot presume that one of the steps of the procedure has been fulfilled if the required formalities have not been satisfied, such as the delivery of an exemplar and the signature of both parties on this document.

Since electronic signatures are currently not recognized by the labor administrations, employers may want to obtain signatures from both parties on each exemplar and then document that the employee has received a copy.

Written by Marie Millet-Taunay of Ogletree Deakins

© 2019 Ogletree, Deakins, Nash, Smoak & Stewart, P.C.