While the law itself remains silent on this point, the Supreme Court of France requires that the employer provide the worker, at the time of signing, with one of the two original copies of the reciprocal termination contract (6), while the candidate is not terminated at that time, as the employment department has not confirmed the reciprocal termination agreement. This means that the termination is non-acute if the copy of the contract has not been transmitted directly to the employee (7) or after the termination of his employment contract (8). Similarly, a reciprocal termination agreement that does not mention the date of signing renders the termination of the employment contract null and void, as it does not determine the starting point of the 15-day withdrawal period (9). At the end of this period, a party (usually the employer) must send an original copy of the agreement confirming the termination to the employment administration. This must be done within 15 working days. According to Articles L. 1237-11 and following articles of the French Labour Code, individual reciprocal termination agreements are currently the most successful form of amicable termination of an indeterminate employment contract. However, their apparent lightness is called into question by the intervention of the French Labour Agency (DIRECCTE), which plays an important role in the dismissal procedure. Thus, individual termination of the contract for protected workers is authorized by the labour inspectorate (labour inspection), while for unprotected workers (i.e. workers` representatives, members of the Economic and Social Committee, trade union delegates; Candidates in company elections, employees mandated by a union representative of collective bargaining, union defenders, etc.) it was merely approved by the employment agency. The figures and case law show that some workers are willing to challenge the mutual dismissal contract they have agreed to. As a result, the Supreme Court of France is regularly asked to set the conditions for the implementation of the individual mutual denunciation agreement and to sanction employers.
Articles L.1237-11 and the Labour Code specify the amicable dismissal procedure. The Social Chamber of the Supreme Court of France has recently been stricter in regulating the conditions for concluding a reciprocal termination. In addition, French jurisprudence has recently raised doubts about the application of an individual contract of mutual dismissal when a worker has been declared incapacitated as a result of an accident at work (“unfit”). The Supreme Court of France accepted the validity of a reciprocal whistleblowing agreement reached in such a case, unless there was fraud and consent was effectively given. However, in this case, the labour inspector requires that the worker receive severance pay at least equal to the amount of compensation provided in the event of dismissal for work-related incapacity. Although the labour code prohibits the application of a mutual denunciation agreement to circumvent the legislation applicable to collective economic dismissals, the French administration accepts in practice, in this situation, the application of such agreements.