Nullity incurred for the backdated contractual termination

CA Montpellier, 8 January 2020 n°16/02955; CA Aix-en-Provence, 17 June 2022 n°18/20412

As a reminder, the “rupture conventionnelle” was created by law n°2008-596 of 25 June 2008 on the modernisation of the labour market. This is a method of terminating the employment contract by mutual agreement between the employee and the employer. It cannot be imposed by either party and is exclusive of resignation and dismissal.

It is governed by Articles L. 1237-11 et seq. of the Labour Code, which provide that “the employer and the employee may jointly agree on the conditions for the termination of the employment contract between them.

The contractual termination, exclusive of dismissal or resignation, cannot be imposed by either of the parties.

It results from an agreement signed by the parties to the contract. It is subject to the provisions of this section designed to ensure the freedom of consent of the parties “.

It is accompanied by a severance payment at least equal to the legal redundancy payment and a procedure to ensure the freedom of consent of the parties.

• Brief reminder of the rules on contractual termination

As a preliminary point, it should be recalled that Article L. 1237-12 of the Labour Code provides that the parties to the contractual termination agree to one or more interviews during which they may be assisted.

The parties then draw up the termination agreement.

From the date of signing the contractual termination, the parties have a period of 15 calendar days to exercise their right of withdrawal. At the end of this withdrawal period, the earliest party shall request approval from the administrative authority.

On this last point, two Courts of Appeal had the opportunity to review a common practice in the field of contractual termination.

• Non-compliance with the withdrawal period: backdated contractual termination

In order to speed up the procedure, the employer, with or without the employee’s consent, decides to backdate the signing of the contractual termination. This practice, which prevents the application of the 15-day withdrawal period from which the employee loses the benefit, calls into question the validity of the agreement.

In a judgment handed down by the Montpellier Court of Appeal on 8 January 2020, the employer stated that the termination agreement had been concluded on 25 February 2013. However, the Cerfa termination form and the contractual termination protocol were only sent to the employer for the first time by the employer’s consulting firm on 13 March 2013. On the same day, the form and the protocol were sent to the employee. The Court of Appeal noted that these documents could only be completed and signed by the employee on 13 March 2013 at the earliest. It deduced that the request for homologation sent by the employer to the administration on 18 March 2013 was not made within the legal time limit: indeed, it was sent before the expiry of the fifteen-day withdrawal period. The Montpellier Court of Appeal therefore concluded that the termination agreement should be cancelled.

In another more recent judgment by the Court of Appeal of Aix-en-Provence on 17 June 2022, the facts were substantially similar: on 28 July 2017, the employer had orally summoned his employee to an interview to take place on 31 July 2017. During this meeting, the parties agreed on the termination of the employment contract and signed the Cerfa form of conventional termination which was backdated to 13 July 2017. The termination agreement stated that the first interview took place on 13 July and that the withdrawal period expired on 31 July. The Court of Appeal of Aix-en-Provence considered that the date mentioned on the Cerfa form was wrong, not allowing the employee to exercise his right of withdrawal which ended on the day the agreement was signed. As such, it declared the contractual termination null and void in view of the employee’s vitiated consent, as he did not have the opportunity to exercise his right of withdrawal.

The two decisions handed down by the lower courts are in line with the position adopted by the Court of Cassation, which sanctions the nullity of a termination agreement whose date of signature, which is not mentioned, is uncertain, making it impossible to determine the starting point of the withdrawal period (Cass. Soc. 27 March 2019, n°17-23.586). The Court of Cassation also considers that the termination agreement is void if on the day it is signed the withdrawal period has already expired (Cass. Soc., 19 Oct. 2017, n°15-27.708).