Apr
30
French labour law - “Rupture conventionnelle “ and Covid-19: can we sign a conventional rupture during the confinement period of the Coronavirus? CHHUM AVOCATS (Paris, Nantes, Lille)

The homologation of approved conventional ruptures was disturbed by ordinance n ° 2020-306 of March 25, 2020 relating to the extension of deadlines expired during the health emergency period and to the adaptation of procedures during this same period and the ordinance n ° 2020-427 of April 15, 2020 laying down various provisions in terms of deadlines to deal with the covid-19 epidemic.

Decree No. 2020-471 of April 24, 2020 https://www.legifrance.gouv.fr/eli/decret/2020/4/24/MTRZ2010186D/jo/texte derogating from the principle of suspension of deadlines during the period of state of health emergency linked to the epidemic of covid-19 provides that the period of homologation of conventional ruptures by the DIRECCTE which was suspended due to the COVID pandemic- 19 (art. 7 ordinance n° 2020-306) of March 25th, 2020) resumes its course from the day after the day of publication of the decree.

This decree clarifies the regime for the approval of conventional breakages during the COVID-19 period.

This brief is current as of April 30, 2020.

Employees are reminded that 50% of contractual ruptures are disguised dismissals and that it is preferable to have the assistance of a lawyer to best negotiate their departure from the company.

We must distinguish 3 cases.

1) From April 27, 2020: return to normal for the approval of conventional breakages by the DIRECCTE!

Decree No. 2020-471 of April 24, 2020 https://www.legifrance.gouv.fr/eli/decret/2020/4/24/MTRZ2010186D/jo/texte derogating from the principle of suspension of deadlines during the period of state of health emergency linked to the epidemic of covid-19 provides that the period of homologation of conventional ruptures by the DIRECCTE which was suspended due to the COVID pandemic- 19 resumes its course from the day after the day of publication of the decree.

This derogation is based on a reason for securing employment relationships (see Decree n° 2020-471 of April 24th, 2020).

The deadline for DIRECCTE to approve or refuse to approve a rupture agreement:

  if it had been suspended since March 12th, 2020: resumes its course on April 27th, 2020 (April 26th falls on a Sunday, non-working day), for the time remaining to March 12th, 2020;
if he had to start running during the legally protected period (March 12th, 2020 - June 24th, 2020): begins, as the case may be:

• either on April 27th, 2020, for requests received between March 12th and Friday, April 24th, 2020 and will end on May 15th at midnight, given that two legal holidays (May 1st and 8th, 2020) and three Sundays are included in the deadline;

• either upon receipt of the request (the next day) for requests for contractual breakages which will arrive after April 25th, 2020, in accordance with the provisions of article L.1237-14 (see Normandy Direct Communiqué of April 27, 2020 http://normandie.direccte.gouv.fr/Coronavirus-COVID-19-Homologation-des-ruptures-conventionnelles)

The silence kept by the administration during the investigation period, calculated as indicated above, constitutes tacit approval of the termination agreement.

For faster handling of the request by the administration, it is recommended that you enter the approval request online and send it directly to Direccte via the teleservice www.teleRC.travail.gouv.fr

2) Conventional rupture signed before February 25th, 2020 inclusive and approval request filed before February 22nd, 2020 inclusive

If the contractual termination was signed before February 25th, 2020 inclusive and the approval request was submitted to the administration (by registered mail or via the TéléRC website www.teleRC.travail.gouv.fr) before February 22nd 2020, it was the subject of a tacit approval within 15 days of its filing.

The employment contract can therefore be terminated on the scheduled date.

3) Conventional rupture signed before February 25th, 2020 inclusive and approval request filed after February 22nd, 2020 inclusive

If the contractual termination was signed before February 25th, 2020 inclusive and the approval request was submitted to the administration (by registered mail or via the TéléRC website) after February 22, 2020, it will not be subject to tacit approval due to the suspension of the investigation periods (article 7 of ordinance n ° 2020-306 of March 25, 2020).

It could nevertheless be the subject of an express authorization on the part of DIRECCTE; the most diligent party may send DIRECCTE 75 the following elements by email:

o the rupture form (cerfa);

o proof of deposit (scanned acknowledgment or teleRC);

o the registration number in TéléRC;

o An email address of each party to whom the approval decision must be sent (employer and employee).

If no express approval decision was taken, the tacit approval of the rupture will take place at the end of the instruction period of 15 calendar days which is suspended from March 12, 2020 and which will resume from June 24th, 2020 , date of the end of the legal period protected (the date is fixed at June 24th, 2020 but it can be modified).

4) Conventional rupture signed between February 25th, 2020 and April 25th, 2020

4.1) 15 days right of withdrawal

If the contractual termination was signed after February 25, 2020, the withdrawal period of 15 days is not extended following Article 2 of Ordinance n° 2020-427 of April 15, 2020.

Therefore, the parties have a period of 15 calendar days to exercise their right of withdrawal which runs from the date of signature of the agreement.

This right of withdrawal is exercised in the form of a letter sent by any means attesting to its date of receipt by the other party (art. 1237-13 of the labor code).

4.2) Between February 25th, 2020 and April 27th, 2020: Express / explicit approval of the “rupture conventionnelle” by the DIRECCTE

The investigation period for the homologation of the “rupture conventionnelle” was suspended in application of article 7 of ordinance n ° 2020-306 of March 25, 2020 until the decree of April 24, 2020.

The suspension of the time taken to examine the request for approval of the breach of contract did not deprive the DIRECCTE of formulating an explicit decision of approval could take place during the period of the state of health emergency increased by one month.

An explicit homologation, like a refusal of homologation, could thus be notified to the employer and the employee concerned during this period (see press release from the Normandy DIRECCTE of April 27, 2020 http://normandie.direccte.gouv.fr/Coronavirus-COVID-19-Homologation-des-ruptures-conventionnelles).

Sources:

. Ordinance N° 2020-427 of April 15th, 2020

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041800899&categorieLien=id

. Ordinance N° 2020-306 of March 25th, 2020

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041755644

. Decree N° 2020-471 of 24 April 2020 derogating from the principle of suspension of time limits during the period of health emergency linked to the epidemic of covid-19 in the field of work and employment

https://www.legifrance.gouv.fr/eli/decret/2020/4/24/MTRZ2010186D/jo/texte

. Homologation des ruptures conventionnelles – Communiqué DIRRECTE de Normandie du 27 avril 2020

http://normandie.direccte.gouv.fr/Coronavirus-COVID-19-Homologation-des-ruptures-conventionnelles

. Service de saisie d’une demande d’homologation d’une rupture conventionnelle

www.teleRC.travail.gouv.fr

Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

.Paris: 4 rue Bayard 75008 Paris tel: 0142560300

.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644

.Lille: 25, rue Gounod 59000 Lille tel: 0320135083

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