Conventional breakage
Verified 23 December 2022 - Directorate for Legal and Administrative Information (Prime Minister)
Corresponds to all calendar days in the calendar year, from 1er January to December 31, including public holidays or non-working days
Non-working day
Corresponds to all days of the week except the weekly day of rest (usually Sunday) and public holidays usually not worked in the company
An employee with a trade union mandate or representing staff benefiting from special measures in the event of dismissal. The labor inspectorate must give its consent in the event of dismissal of a member of the Economic and Social Committee (ESC), a trade union representative, a staff representative or a labor adviser.
Outcome of the negotiations between the social partners (employers and employees)
The contractual breakdown allows the employer and the employee to DTA: titleContent to agree by mutual agreement on the conditions for termination of the contract of employment between them. The conventional split can be individual or collective. The contractual breach must specify the conditions of compensation of the employee following the breach of his contract. A legal procedure sets out the procedures to be followed. A break agreement must be drafted. It must be validated by the DDETSPP: titleContent.
What applies to you ?
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Individual
Step-by-step approach
Contractual termination is the only means of termination of the contract of employment between the employee and the employer.
The contractual break is open to the employee only in DTA: titleContent.
The mechanism does not apply to employees in CSD: titleContent or on a temporary contract.
Essential criterion: agreement of the parties
The employer and the employee must jointly agree to a contractual breach of the contract of employment.
The employer cannot impose a contractual breakdown on the employee.
Similarly, the employee cannot impose it on the employer.
Prohibition of breach of agreement
The employer and the employee may not agree to an individual contractual breakdown if it is taken in any of the following cases:
- It is concluded under fraudulent conditions or in the absence of an agreement between the employee and the employer
- It is proposed in the framework of a collective agreement for the forward management of jobs and skills (GPEC) or a employment protection plan (ESP)
- It is proposed as part of a collective agreement breaking collective agreement
- The contractual termination procedure is intended to circumvent the guarantees provided for the employee in respect of economic dismissal
The conventional break can be canceled by the labor council (CPH) if the employee establishes that it was signed without his free consent.
For example:
- The conventional break was signed in the context of psychological harassment
- The employer exerted pressure to induce the employee to choose a contractual break
The employee may then receive compensation in the event of wrongful dismissal (no real and serious cause).
Yeah. Yeah.
The interview or interviews define the conditions of the break (effective date of termination of contract, amount of compensation paid by the employer, notice to be given or not).
These conditions are indispensable prior to the drafting of the termination agreement.
Summoning for one (or more) interview(s)
It's number onere stage of the procedure: the employer and the employee must meet for at least one interview.
The conditions for calling an interview are freely determined by the employer and the employee (date, time, place).
Employee Assistance
During each interview, the employee may be assisted by:
- Or by an employee of the company (staff representative)
- Either by a employee's advisor in the absence of a staff representative in the company.
The employee must then inform the employer before the interview (in writing or orally).
Employer assistance
During each interview, the employer may be assisted by one of the following persons:
- Person of his choice belonging to the company staff
- Member of his employers' trade union (or by another employer in the same branch, if the company employs fewer than 50 employees)
If the employer decides to be assisted during an interview, he must inform the employee before the interview (in writing or orally).
The individual contract of termination shall lay down the conditions for the termination of the contract of employment.
The conditions are freely defined by the employer and the employee.
Content
The agreement shall provide for the following conditions:
- Date of termination of the contract of employment, not earlier than the day following the authorization of the labor inspector
- Amount of the specific indemnity for breach of contract
Discount to employee
The employer must give the employee a copy of the agreement.
The employee and the employer must sign the convention.
FYI
failure to comply with these obligations allows the employee to obtain the cancelation of the breach of contract and the payment of the compensation wrongful dismissal (no real and serious cause). The employee must enter the labor council (CPH).
The employer and the employee shall have the right of withdrawal of 15 calendar days.
The withdrawal period shall start on the day following the date of signature of the agreement.
Where the last day of the period falls on a Saturday, Sunday, public holiday or unemployed person, it shall be extended to 1er working day following signature of the rupture.
A simulator is used to determine the end date of the withdrawal period:
Calculate the possible withdrawal period for a conventional break
In the absence of a withdrawal within the period laid down, the agreement must be sent to the DDETSPP: titleContent to obtain its validation.
The procedure for validating the agreement varies depending on whether the employee is sheltered or not.
General case
The employer or employee sends a request for validation of the termination agreement using the TeleRC online service.
Online application for approval of a conventional break (TeleRC)
If the employer or employee is unable to use the online service, the request may be made by filing a claim form.
The employer or employee then fills in the form cerfa no. 14598 application for conventional failure type approval and the address at the Dreets: titleContent.
Who shall I contact
The DDETSPP has a time limit of 15 working days, from the day following the working day of receipt of the request, to verify the validity of the agreement.
If the last day of this period falls on a Saturday, Sunday or public holiday, or unemployed person, it shall be extended to 1er next business day.
If the DDETSPP has not replied within 15 days, the agreement shall be approved.
In case of refusal of approval, the DDETSPP must give reasons for its decision (in particular in case of non-respect of a stage of the procedure or doubt on the free consent of the parties).
FYI
any appeal concerning the convention, its approval or refusal of approval shall be made to the prud'homme council within 12 months of the date of approval of the Convention.
Protected employee
The termination agreement concerning a protected employee is not subject to approval, but to the authorization of the labor inspector.
The employer must complete the following form:
The agreement is then sent to the DDETSPP: titleContent by the employer.
Who shall I contact
The labor inspector must ensure the parties' freedom of consent (in particular by verifying that no pressure has been exerted in relation to the protected employee's mandate).
In the absence of a reply from the labor inspector within 2 months, the application for authorization shall be considered rejected.
FYI
all appeal (ex gratia, hierarchical or contentious) must be presented within 2 months of the decision of the labor inspector.
As long as the contract has not come to an end, the employee continues his activity under the usual conditions.
He may take paid leave during this period.
Regardless of seniority, an employee who signs a validated breach of contract shall receive a specific indemnity for breach of contract at the end of the breach of contract.
Compensation may not be less than statutory severance pay.
The calculation of the specific allowance varies according to the employee's seniority and remuneration.
The employee can estimate the amount of his allowance using the simulator for calculating the specific contractual break-up allowance:
The termination date is provided for in the termination agreement.
The employee is not obliged to give notice.
The employer must provide the employee with all of the following documents:
- Work Certificate
- Pôle emploi Attestation
- Balance of all accounts
- Participation schemes, profit-sharing schemes, wage savings plans within the company, summary statement of all sums and securities saved
The employee receives the paid leave allowance, if he has not taken all the leave accrued on the date of termination of the contract.
If the employment contract provides for a non-compete clause, the financial contribution shall be due.
At the end of the contract, the employee is entitled to unemployment benefits if he/she completes the conditions for taking advantage of them.
Collective
The conventional break known as collective may not be offered by the employee to his employer.
Only the employer can initiate the negotiation of a collective agreement termination agreement.
Collective contractual breakdown can only be achieved within the framework of a collective company agreement.
Please note
if a protected employee is concerned by a collective agreement on a contractual breakdown, the authorization of the labor inspectorate is mandatory. If an occupational physician is concerned by the agreement, the authorization of the labor inspectorate is also compulsory, following the opinion of the occupational inspector.
A common agreement between the employer and each employee is essential for the implementation of a collective agreement breakdown.
Content of the agreement
The collective agreement must contain the following information:
- Conditions for informing the Social and Economic Committee (ESC)
- Maximum number of planned departures, associated job losses and duration of collective breakdown
- Conditions which the employee must meet in order to benefit from it
- Conditions for the submission and examination of applications from employees
- Criteria for separation between candidates at departure
- Ways to calculate employee guaranteed severance pay
- Accompanying measures and external redeployment of employees to equivalent posts
- Follow-up clauses to the agreement
Discount to employee
The employer must give the employee a copy of the agreement.
The employee and the employer must sign the convention.
The employee proposes his candidacy for the collective agreement breakup in writing under the conditions laid down in the Agreement.
The employer and the employee shall have the right of withdrawal of 15 calendar days.
The withdrawal period shall start on the day following the date of signature of the agreement.
Where the last day of the period falls on a Saturday, Sunday, public holiday or unemployed person, it shall be extended to 1er working day following signature of the rupture.
A simulator is used to determine the end date of the withdrawal period:
Calculate the possible withdrawal period for a conventional break
The employer must first enter into a collective agreement at the level of the company or establishment.
The employer shall forward the content of the agreement to the DDETSPP: titleContent via the PSE-RCC portal.
PSE-RCC portal (Plan for safeguarding jobs-Collective breakdown of agreements)
The agreement must be validated by the DDETSPP: titleContent.
The absence of response of the DDETSPP following 15 calendar days after receipt of the dossier shall be deemed to have been validated.
The employer must then send a copy of the validation request, accompanied by its acknowledgement of receipt by the administration, to the ESC: titleContent and employees who have signed the agreement.
If the DDETSPP refuses to validate the agreement, the employer must submit a new agreement that takes into account the requested changes.
As long as the employment contract has not come to an end, the employee shall continue his activity under the usual conditions.
He may take paid leave during this period.
The employer's acceptance of the employee's application in the context of the collective breach of contract shall entail the termination of the employment contract by mutual agreement of the parties.
The employee shall then receive a severance pay which may not be less than legal compensation due in the event of dismissal on economic grounds.
The calculation of the specific allowance varies according to the employee's seniority and remuneration.
The employee can estimate the amount of his allowance using the simulator for calculating the specific contractual break-up allowance:
In the context of a collective breach of contract, the employee cannot benefit from the professional security contract (CSP).
Nor does the employee benefit from the re-hire priority which exists in the context of an economic dismissal.
The employer remains free to hire if his financial situation improves.
However, the employer is under no obligation to offer an available position to the employee who has agreed to a collective agreement breakdown.
The termination date is provided for in the termination agreement.
The employer must give the employee all the following documents:
- Work Certificate
- Pôle emploi Attestation
- Balance of all accounts
- Participation schemes, profit-sharing schemes, wage savings plans within the company, summary statement of all sums and securities saved
The employee receives the paid leave allowance, if he has not taken all the leave accrued on the date of termination of the contract.
If the employment contract provides for a non-compete clause, the financial contribution shall be due.
At the end of the contract, the employee is entitled to unemployment benefits if he/she completes the conditions for taking advantage of them.
Maternity Assistant
The employer and the childminder cannot pitch enter into a conventional breach.
Who can help me?
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Collective breakdown in agreement
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