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Conventional Termination Invalidated
Conventional termination allows the employer and employee bound by a permanent contract (CDI) to mutually agree on the terms of termination of the employment contract that binds them.
However, this mode of termination of the employment contract provided for by law is open to certain employees under certain conditions. For example, a conventional termination of the employment contract occurring in a context of moral harassment is not valid. This was recently decided by the Court of Cassation.
An employee, on sick leave for a depressive state directly related to her working conditions and victim of moral harassment on the part of the employer, had been led to sign a contractual termination the very day of her return to work.
Moral Harassment and Termination
The Court of Cassation has ruled that the contractual termination of an employment contract in the context of moral harassment is not valid. In a recent case, an employee who was on sick leave due to a depressive state caused by her working conditions and who had suffered moral harassment from the employer, was forced to sign a contractual termination on the day even on his return to work. The Court considered that such a termination obtained in such circumstances cannot be considered as given freely, treating it as a dismissal without just cause. This decision aims to prevent abuse and protect employees from unfair treatment.
According to the judges, when the contractual termination occurs under such conditions, the employee’s consent cannot be given freely. Consequently, this termination produces the effects of a dismissal without real and serious cause giving right to damages.
In a judgment dated 2019, the Social Chamber (1) neutralizes the possibility of using moral harassment to obtain the nullity of a conventional termination of the employment contract. The absence of proof of lack of consent therefore continues to exclude said nullity and thus makes it possible to avoid any abuse on the part of the applicant.
1/ Court of Cassation, civil, Social Chamber, January 23, 2019, 17-21.550: https://www.legifrance.gouv.fr/juri/id/JURITEXT000038091458
Cabinet DAMY , Nice, Labor Law, Update 2021.
