The settlement agreement worded in general terms may cover future rights that do not exist on the date of signing, except for measures expressly excluded from the settlement.

The French Supreme Court has confirmed the redirection of its case law in terms of settlement agreements in a decision dated 20 February 2019.

In this decision, the French Supreme Court withdraw from its former restrictive analysis of claims covered by settlement (according to which, in the absence of an explicit reference, the employee does not waive his rights), and confirms its extensive analysis of the scope of a settlement agreement, including, if need be, in relation to rights that do not exist on the date of signing.

The French Supreme Court thus recalls that where the settlement provides that in consideration of an indemnity, the employee irrevocably waives all litigation rights relating to the performance and the termination of his employment contract, the settlement acts as a barrier to any claim formed by the employee, including for future rights, such as claims linked to redeployment or the right of first refusal, even if these claims have not been listed expressly in the settlement agreement.

However, if the settlement agreement expressly provides that certain rights are not covered, the parties remain free to initiate a claim in relation to such rights and it will not be possible to challenge such claim on the basis of the re judicata nature of the settlement.

In this case, because the settlement agreement expressly mentioned that potential disputes concerning other social supporting measures were expressly excluded from the scope of the settlement, the employer was entitled to claim the reimbursement of the overpayment made to the employee in relation to support in setting up companies.

It will therefore be necessary for the parties to a settlement agreement to be very careful in the drafting of the settlement agreement and to expressly mention the claims or subjects that they do not want to include in its scope.