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Until 2014 , the Court of Cassation and several Courts of Appeal considered that during periods of suspension following an accident at work or an occupational disease, the employer could not make the employee sign a break in a common agreement of the employment contract, such a termination of the contract to be declared null and void (Company Cass 4 January 2000 n ° 97-44566 ).
The courts relied on the drafting of Article L122-32-2 of the Labor Code, now Article L1226-18, which stipulates that the employer can not break the contract of an employee who suffers an accident or of an occupational disease during periods of suspension of the contract only if it justifies either serious misconduct of the person concerned or a case of force majeure. Otherwise, the breach of contract is void ( Article L1226-13 ).
In addition, a circular from the General Directorate of Labor dated 17 March 2009 stated that the contractual break could not be signed during a period of suspension of the contract, for example during the maternity leave or during the judgment attributable to an accident. of work or an occupational disease ( DGT circular n ° 2009-04 of 17 March 2009 on the contractual termination of a contract of indefinite duration ).
This is not really a reversal of case law since the 2000 decision concerned an amicable break (the conventional break was instituted later, by the law of 25 June 2008), while that of 2014 concerned a homologous conventional break. that is to say, validated by the management of the work, and benefiting from a withdrawal period, intended to guarantee the freedom of the consent of the parties.
The main contribution of this decision of 30 September 2014 is to refocus the debate on the freedom of consent of the parties , as mentioned in Article L1237-11 of the Labor Code:
” The employer and the employee may agree in common terms of the termination of the employment contract between them.
The conventional breach, exclusive of the dismissal or the resignation, can not be imposed by one or other of the parties.
It results from an agreement signed by the parties to the contract. It is subject to the provisions of this section intended to guarantee the freedom of consent of the parties “.
It should be noted that the decision handed down by the Court of Cassation in December 2014 was incorporated by the labor administration. In fact, in 2010, the service public.fr website listed the “situations that made it impossible to break conventionally”, which included a work stoppage due to an accident at work or an occupational disease “. This situation has been removed from the list ( service-public.fr ).
In September 2016, the Court of Appeal of Bourges applied the jurisprudence of the Court of Cassation in a situation where the conventional break was signed during the work stoppage following an accident at work (CA Bourges, ch. September 9, 2016, No. 14/01495).
The important thing to remember is that it does not matter if a contractual break is signed during a period of suspension of the contract following an industrial accident or an occupational disease, since there is no fraud, nor vice of consent.