The circular n°2009-04 of March, 17th 2009 dealing with the conventional breach of no-ending contracts, specifies, in particular, the possibilities to use a conventional breach in a redundancy framework.
Indeed, the Law of June 25th, 2009 already limited the use of the conventional breach by excluding from its field the part of the French Labor Code about redundancy.
The circular of March, 17th 2009 specifies today such limitation's impact.
The circular (§1.3 and 1.4) points out that the conventional breach of contract and its following procedure are not applicable advantages when a protective provision of the freedom of consent already exists.
Thus, the out of court breach of contract, happening in the field of specific agreements as for example the anticipated management of employments and capacities (“Gestion prévisionnelle des emplois et des compétences”) or in the field of a social plan (“Plan de sauvegarde de l'emploi” : PSE) is clearly excluded from a conventional breach field.
Then, the circular explains the risks of a conventional breach in redundancies framework, especially collective ones.
In the opposite, if a firm suffers of economic difficulties, or even applies a social plan to some employments, it is not enough to exclude the conclusion of a conventional breach agreement.
Nevertheless, the happening of conventional breaches in such economic context, in a coordinated and organized way, can constituted deep suspicion evidence of ousting attempts of the legal redundancy procedure.
To conclude, it is not strictly forbidden for an employer to negotiate a conventional breach when redundancies are planned in the firm.
Procedures have to be separated and independent at that time.
In those circumstances, it is foreseeable that the Labour Authority (DDTE) will check that the redundancy procedure would not be ousted.
Frédéric CHHUM avocat à la Cour
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