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In the event of cancellation of the authorization of the termination by mutual agreement of a protected employee’s employment contract, they must be reinstated in the company

FSC. 15 May 2019, n°17-28547

In this decision, the French Supreme Court sets the effects of the cancellation of the decision of the Labour Inspectorate authorizing the termination by mutual agreement (rupture conventionnelle) of a protected employee’s employment contract.

Like other employees, protected employees may enter into a termination by mutual agreement of their employment contract. This termination can however only take place under the condition of an express authorization by the Labour Inspectorate (article L.1237-15 of the French Labour Code) who must assess the employee’s freedom of consent, the compliance with the procedure but also the absence of any link with their electoral mandate.

In the case at hand, the Labour inspectorate had indeed authorized the termination by mutual agreement of a protected employee’s employment contract before this decision was challenged by the employee, who applied to the Ministry of Labour for its cancellation.

The authorization was cancelled and the employee then applied for reinstatement in the company. The employer offered the employee a position which did not match his skills and experience. The employee therefore brought action before the Labour Court for constructive dismissal of his employment contract, entailing the effects of a null and void dismissal.

The Court of Cassation upheld the decision of the Court of Appeal which had heeded the protected employee’s claim and thus ruled: “the protected employee whose termination by mutual agreement is null and void because of the cancellation of the administrative authorization must be reinstated in his position or in an equivalent position; Therefore, where the employer has not fulfilled this obligation, without justifying an impossibility of reinstatement, the constructive dismissal due to the employer’s breach produces the effects of a null and void dismissal for breach of the protective status“.

Regardless of whether the employee has consented to the termination of his employment contract by signing the termination by mutual agreement, the absence of authorization from the Labour Inspectorate (or the cancellation thereof) necessarily entails the nullity of the termination. The employee must therefore be reinstated in his former position.