Termination by mutual agreement: what is the latest news?
Termination by mutual agreement: what is the latest news?
According to the latest rulings from the Court of Cassation, what are the two pitfalls to avoid?
And which social benefits apply?
Social law is a living law that is constantly changing. That is why Primexis, in collaboration with the law firm Dupard & Guillemin, accompanies you regularly and answers your questions with their viewpoints on Payroll and Labor Law.
What’s new in the 1st semester of 2022?
Since April 1st 2022, the requests for termination by mutual agreement must be transmitted electronically via TéléRC.
The departmental directorates will no longer handle the CERFA forms sent by mail.
Two pitfalls that come at a heavy cost…
- An employee can validly request the nullification of the termination by mutual agreement and its reclassification as a dismissal without real or serious reasons, if the employer is not able to prove that he presented an original copy of the CERFA form. A delivery receipt of the document must thus be necessarily kept. (Social Cassation, March 16, 2022)
- Whatever the contract, whatever the collective labor agreement, a non-competitive agreement can never be rescinded following the date of termination set by both parties on the CERFA form. Consequently, even if the contract of the employee provides for a possible rescission in the 15 days following the notification of termination, this clause does not apply in the event of a termination by mutual agreement. Our suggestion: Decide the fate of a non-competitive agreement with the CERFA form. (Social Cassation, January 26, 2022)
Which social benefits apply to the severance pay of the termination by mutual agreement?
Benefitting from an agreed compensation following a termination by mutual agreement is uncertain. Why?
A termination by mutual agreement in which both parties are intent on terminating the contract supposes that any later transaction – dealing with an element inherent to the termination of the employment contract is null. After a termination by mutual agreement, the Parties can compromise only on elements related to the execution of the employment contract (ex: a follow-up on overtime hours).
Consequently, social benefits involve having the agreed compensation paid after a termination by mutual agreement be submitted to social contributions starting from the first euro.
The courts empowered to rule on the merits of these matters only validated CSG-CRDS after having found that the compensation concerned moral injury related to harassment or discrimination suffered during the execution of the contract. (Court of appeal of Angers, September 19, 2019, No. 17/00714)
The formulation of the compensation is thus essential in order to avoid any remedial action.
