Provided for in Articles L. 1237-11 (and following) of the Labour Code, one of the flagship features of the law on the modernization of the labour market is the possibility given to the employer and the employee to break a common agreement of the employment contract.

The procedure is simple: after one or several meetings, the parties agree to conclude a work stoppage that is submitted to the labour inspector for approval after a period of 15 days. The latter has 15 working days to accept or to refuse the approval; silence meaning acceptance.

The conventional break-up appears advantageous for the employee who receives compensation at least equal to the mandatory severance pay (irrespective of age and within certain limits, exempt from social security except CSG and CRDS), and unemployment allowances from the unemployment fund (“ASSEDIC”).

With regard to the employer, he does not need to justify the termination of the employment contract. Moreover, after a period of 12 months following approval, the ruptured agreement can no longer be challenged before the industrial tribunal (“le Conseil de Prud’hommes”).

Echoing the national inter-professional agreement of January 11, 2008, the will of the legislator has been to avoid litigating the employment contract.

It is regretful that MEPs have rejected the possibility for parties, particularly the employer, to be assisted by a lawyer (avocat) during the interviews prior to the signing of the convention.

This absence of the counsel by a lawyer is very detrimental to the extent that the negotiations leading to the break will not be protected by confidentiality privileges.

In case of failure of negotiations between the employer and the employee or approval of the agreement, it will be very difficult for the employer to justify a real and serious cause for dismissal a few days or weeks after the failure or refusal, at least if the parties have never made an agreement in the draft of the agreement.

As the exchange of documents, letters, emails or draft agreements is not covered by the confidentiality between lawyers, the dismissed employee may bring before the tribunals a number of elements enabling him to demonstrate that the employer had no reason to get rid of him as part of a dismissal.

Accordingly, we urge companies to exercise the utmost vigilance in the use of this device, which can be a real trap in case of failure of negotiations!