1- First of all, when an employer and an employee wish to end their employment relationship, they have to meet during one or several meetings in order to discuss the terms of the termination.
2- The employee has a statutory right to accompaniment, which means that he/she can come with a companion at the meeting. Where the employer has employee representatives in the company, the companion must be an employee of the company. Where it is not the case, the labour administration provides for a list of companions that can be found at the relevant city/town council (’mairie’) or at the administration premises or even on line.
3- When the employer invites the employee at the meeting, it has to advise the employee of his/her right to accompaniment and provide information about the companion. The employer should give to the employee a reasonable time between the invitation delivery and the day when the meeting effectively takes place. In practice, a period of 5 business days would be satisfactory.
4- During the meeting(s), the employer and the employee will discuss various points, notably :
the date of the contract termination - it shall be consecutive to the expiry of specific periods (points 6 & 7 below)
the compensation for loss of employment (’indemnité spécifique de rupture’) - it cannot be lower than the amount set out in the applicable collective bargaining agreement
5- If the parties ultimately agree, they will complete and sign the termination agreement which must be drafted on a specific form delivered by the French Labour administration on line.
There are a number of information that should be completed on the form : the parties’ identification, address and contact details, the applicable collective bargaining agreement, the employee’s past 12 wages, the amount of the compensation, the date(s) of the meeting(s) and the companion’s name (if any), the date of the contract termination. These information can also be completed on line.
6- Once the ’rupture conventionnelle’ form is signed, the employer and the employee should have one copy each and they shall comply with two mandatory periods :
following the signature, a period of 15 calendars days during which each party can withdraw his/her consent to the termination by agreement
following the expiry of the withdrawal period, a copy of the form must be sent to the DIRECCTE which will have 15 business days to approve (’homologation’) or to refuse the termination (the administration silence amounts to an approval) ; it is an investigation period where the DIRECCTE might request additional information.
7- At the end of the above-mentioned periods, the parties can terminate the employment contract. Consequently, the termination date cannot be set out at an earlier date in the form.
8- The employee can still apply to the tribunal in order to get the nullification of the ’rupture conventionnelle’ within a period of 12 months following the termination approval. If the employee succeeds, he/she will be entitled to compensation for unfair dismissal.
Therefore, it is advisable to comply with the French procedure and the case law in relation to the ’rupture conventionnelle’. Indeed, there are various limits, prohibitions and applicable recommendations.
