A quick note to inform readers of the blog that the texts expected to complete the law No. 2008-596 of 25 June 2008 on the modernization of the labor market have finally appeared.
This is the decree fixing the models of the application for homologation of a conventional rupture of employment contract of indefinite duration and the two decrees n ° 2008-715 and n ° 2008-716 of July 18, 2008 carrying various measures relating to the modernization of the labor market, fixing in particular the amount of severance pay which may not be less than one-fifth of a month's salary per year of service, plus two-fifteenths of a month beyond ten years of service and slightly modifying the rules regarding the maintenance of an employee's salary in the event of illness or accident of occupational origin or not.
The texts can be consulted on the Official Journal website by clicking the link Consult the authenticated OJ, then indicating the date of 19 July 2008 and finally looking in the texts under the category Ministry of Labor, Social Relations, Family and solidarity.
The texts are also available on the Légifrance website: Decree No. 2008-715 , Decree No. 2008-716 and Decree. for more details click here.
The text that interests us mainly is obviously the decree, the two decrees do not really concern this issue at all, contrary to what may have been falsely written everywhere on the Internet.
You will find here in annex of the text the two forms according to the cases of figure: employee protected or not. When you read it, you will see once again that the French administration, faithful to its age-old practice, has still done in simplicity. The form is thus as "heavy" to complete as the attestation ASSEDIC, attestation which the employer will not even be able to dispense with this mode of rupture.
Therefore, caution and I remind readers that this "new mode of rupture" is not the grail, the conventional break requiring the agreement of both parties and the absence of litigation between them. Thus, if the employee wishes to leave because of shortcomings that he blames his employer, this mode of breaking is not the most judicious, even if it offers an immediate departure from the company and the guarantee of benefiting from the unemployment insurance since, in return, it greatly undermines the chances of a subsequent legal proceeding (see on this question articles on Taking action of the termination of the contract of employment to the fault of the employer and Judicial termination of the employment contract). In this case, it is even more interesting for the employer to push the employee to resignation or force the latter to a negotiated dismissal .
Before considering this method of disruption, it is therefore strongly recommended that both parties approach a lawyer in order to properly assess the legal consequences (for example, the limitation period of one year instead of five years to challenge this particular break before the Labor Court as of the date of homologation of the Convention). As I have already mentioned several times on the blog, we will see arriving in the coming months and years a new source of litigation on this issue.
Update of July 27, 2008: An explanatory circular dated July 22, 2008 available here has been prepared by the Ministry of Labor to facilitate the examination of applications for homologation of future conventional breaks.