When a conventional break is concluded between an employer and an employee, each must receive a copy of the termination agreement.
Failing to have given a copy to the employee, the employer is liable to the cancellation convention conventional.
This is what the Court of Cassation has just judged ( Cass, 7 March 2018, No. 17-10963 ).
The conventional break allows the employer and the employee to agree jointly on the conditions of the termination of the employment contract that binds them (Article L1237-11 paragraph 1 of the Labor Code).
It can not be imposed by one or other of the parties (Article L1237-11 paragraph 2).
It results from an agreement signed by the parties to the contract and the provisions of the Labor Code are intended to guarantee the parties’ freedom of consent (Article L1237-11 paragraph 3).
The amount of the specific termination indemnity that is paid on the occasion of the break may not be less than the amount of the termination indemnity provided for in Article L1234-9 of the Labor Code (Article L1237- 13 paragraph 1).
As from the date of its signature by both parties, each of them has a period of fifteen calendar days to exercise its right of withdrawal , by letter (article L1237-13 paragraph 3). It is preferable to exercise this right by registered letter with acknowledgment of receipt, the latter making it possible to certify the date of receipt by the other party.
In this respect, a judgment of the Court of Cassation has held that the delivery of a copy of the termination agreement to the employee is necessary both for each of the parties to request the homologation of the agreement and to guarantee the free consent of the employee, allowing him to then exercise his right of retraction knowingly.
In that case, the Court of Cassation ruled that the breach agreement was null and void, since the employee had not been given a copy of the termination agreement ( Cass. -27000 ). The decision of 7 March 2018 therefore reaffirms previous case law.