The title of this article may seem totally incongruous (even provocative) but it nonetheless covers a current current practice within companies.
However, in practice, it is not uncommon for an employee to be offered the following alternative by his employer: either he accepts a contractual termination, or he will be dismissed for economic reasons.
Indeed, the employer may have a double interest in proposing a contractual termination: when there is no economic reason and / or to limit any risk of subsequent litigation, it being specified that a contractual termination can only be canceled if the employee demonstrates that he was the victim of a defect in consent.
In such a situation, then what is the best choice for the employee?
Through this article, we will explain to you why it is always better to prefer an economic dismissal to a rupture conventionnelle unless the employee ultimately obtains the equivalent of legal and conventional indemnities for redundancy as well as compensation for unjustified dismissal at the ceiling. of the Maron scale (see § 5 below).
1) First advantage of economic redundancy (licenciement économique): the prior obligation to relocate (reclasser) the employee
The first advantage of economic dismissal over contractual termination (rupture conventionnelle) is the obligation of prior reclassification which weighs on the employer.
Indeed, to be able to validly dismiss an employee for economic reasons, the employer must be able to justify loyal and serious searches for reclassification which have remained unsuccessful.
It is only if the employer demonstrates that the reclassification of the employee cannot be carried out on the available jobs, located in the national territory in the company or other companies of the group and whose organization, activities or location operating allow the rotation of all or part of the staff (Work C. Art. L.1233-4).
Otherwise, the dismissal is automatically devoid of real cause.
2) Second advantage of redundancy: the benefit of the professional security contract (CSP) or reclassification leave
Second, unlike the rupture conventionnelle, in the event of economic redundancy, the employer must offer the employee the implementation of a more favorable mechanism than the general unemployment scheme:
- In companies with less than 1000 employees, this is the professional security contract;
- In companies or groups of at least 1000 employees, this is redeployment leave.
2.1) The professional security contract (CSP)
The CSP is a system which aims to promote the return to employment of employees made redundant for economic reasons and which is characterized by reinforced support measures as well as specific compensation.
It must be offered to any employee made redundant for economic reasons and who meets the following conditions:
- Justify at least 88 days or 610 hours worked during the last 28 months (or the last 36 months for employees aged 53 and over);
- Not having reached the age allowing to benefit from a full pension;
- Reside in the territory covered by the unemployment insurance scheme;
- Be physically fit for a job.
The employee has 21 days to accept or refuse the CSP.
In the event of a refusal or no response after the expiration of the 21-day period, the economic dismissal procedure continues.
If accepted, the contract is terminated at the expiration of the 21-day period and the CSP begins the next day.
The employee then benefits, for a period of 12 months, from individual and personalized follow-up provided by a referent advisor from Pôle emploi.
In addition, and on condition of proving one year of seniority, the employee receives - during the same period - a professional security allowance (ASP), the amount of which represents 75% of the reference daily salary.
In this case, the employee renounces in return for his notice (If the notice is greater than 3 months, the part of the compensatory indemnity for notice greater than 3 months is however paid to the employee.) The amount of which is paid by the employer at Pôle emploi to finance the CSP.
If the employee does not have one year of seniority, the amount of the ASP and the duration of its payment are equivalent to the amount of the return-to-work assistance allowance (ARE) (Either:
- 57% of the daily reference salary if the gross monthly salary is between 2,307.95 euros and 13,712 euros;
- 40.4% of the daily reference salary + 12.05 euros per day if the gross monthly salary is between 1,304.88 euros and 2,307.95 euros;
- 29.38 euros per day if the gross monthly salary is between 1,191.42 euros and 1,304.88 euros;
- 75% of the daily reference salary if the gross monthly salary is less than 1,191.42 euros).
In this case, the employee receives all of his compensation in lieu of notice.
2.2) Redeployment leave
Reclassification leave is variable in duration from 4 to 12 months.
Like the CSP, it allows employees to benefit from enhanced support services for returning to work.
The employee has 8 days from the date of notification of the letter of dismissal to accept the leave.
Failure to respond within this time is considered a refusal.
Redeployment leave begins during the notice period which the employee is exempt from performing and the termination of the employment contract occurs at the end of the leave. The period of redeployment leave exceeding the period of notice is not taken into account either for the calculation of paid leave or for the determination of the severance pay.
When the notice period is shorter than that of the reclassification leave, the notice period is postponed to the date of the end of the leave.
During the notice period, the employee receives the remuneration which is normally due to him during this period.
During the period exceeding the notice period, he receives a monthly allowance which is not subject to social contributions and the amount of which is at least equal to 65% of the gross monthly salary for the last 12 months preceding the notification of the dismissal without being able to be less than 85% of the minimum wage.
3) Third advantage of redundancy: a reduced or no waiting period for unemployment
The third advantage of economic redundancy relates to the lack of unemployment.
In fact, in the event of acceptance of the CSP, no deferral or waiting period applies and the employee immediately benefits from the payment of the ASP.
In the event of refusal of the CSP or reclassification leave, the 7-day waiting period applies, but the deferred compensation normally capped at 150 days is then capped at 75 days only.
If the reclassification leave is accepted, the employee is not registered with Pôle emploi and the termination of his contract only occurs at the end of the leave period. He can therefore then register as a job seeker in the usual way.
4) Fourth advantage of redundancy: the benefit of priority rehiring (priorité de réembauchage)
Lastly, in the event of economic redundancy, the employee benefits from a rehiring priority for one year following the end of his notice.
During this one-year period, the employee can, at any time, inform his former employer of his desire to benefit from this rehiring priority.
From the moment the employee expresses this desire, the employer is required to offer him all available jobs compatible with his qualification, including those in lower categories.
Otherwise, the employee is entitled to request compensation equal to at least 1 month's salary if he has at least 2 years of seniority and the company has at least 11 employees.
In other cases, it is the judge who sets the amount of compensation based on the damage suffered by the employee.
It should be noted that the employee in CSP also benefits from the priority of rehiring.
As for the employee on reclassification leave, he / she benefits from it, but the 12-month period runs from the end of the leave.
5) How much to negotiate his contractual termination (rupture conventionnelle) in a context of redundancy?
If, despite the benefits of redundancy, the employee wishes to accept a contractual termination, he must be vigilant in negotiating it.
Indeed, the “ rupture conventionnelle ” has become so widespread that now (it is being diverted), and (well advised) employers almost systematically attempt to negotiate a contractual termination before initiating a dismissal procedure.
However, in this negotiation, employer and employees are not on an equal footing.
It is indeed difficult for an employee to know what he is entitled to and how far he can go in negotiating its “rupture conventionnelle”.
Especially since in practice, in 50% of cases, the “ rupture conventionnelle ” is in reality a disguised "low cost" dismissal.
Employees must therefore know how to negotiate their departure.
In this regard, the employee must try to obtain by “ rupture conventionnelle ” what he would have obtained in the event of dismissal without real and serious cause. They are strongly advised to be assisted by a lawyer who will determine the extent of their rights.
To find out how much to negotiate his “ rupture conventionnelle ”, we refer you to our previous article Employees, executives, senior executives: how much to negotiate his contractual termination after the Macron orders? https://www.village-justice.com/articles/salaries-cadres-cadres-dirigeants-combien-negociation-rupture-conventionnelle,27827.html.
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
.Paris: 34 rue Pétrelle 75009 Paris tel: 0142560300
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
.Lille: 25, rue Gounod 59000 Lille tel: 0320135083