Taking up a position is often a happy moment, synonymous with recognition by the recruiter and financial autonomy, in exchange for the time given for the work. However, the permanent contract (CDI) does not mean “eternal relationship” because it can be broken on both sides. For the employer, it is dismissal. For the employee, it is resignation. Then came the conventional termination: a common “goodbye”, like a couple who would no longer have anything to live together and would take separate paths. This mechanism has progressed since its introduction by the law of June 25, 2008 : the 200,000 mark was largely exceeded in 2010, that of 400,000 in 2020 and the milestone of 500,000 annual conventional terminations was reached in 2022 and 2023 – a figure 12 times higher than that of 2008 (40,360).
The upward trend is not weakening: some 132,500 conventional terminations in metropolitan France in the first quarter of 2024, an increase of 2.3% compared to the previous quarter (Dares), an unprecedented number. How can this boom be explained?
“The answers are multiple: the employer’s desire to benefit from legal security [NDLR : peu de contentieux aux prud’hommes]for the employee to receive unemployment insurance, the common interest of ending a dispute as soon as possible”, responds François Taquet, professor of social law and author Negotiated departures and conventional terminations (Gereso, 2024), who points out that executives are now largely concerned: “In times of crisis, this allows us to separate in a consensual manner.”
On high salaries this can be very expensive.
“We see as many employees requesting it as employers offering it,” confirms Brice Briel, associate lawyer at Delsol Avocats. According to him, there is no typical profile of companies or employees who use it, but “there are three types of employers: those who do not want to hear about it, those who are open to the issue and those who limit themselves to terminations at their own initiative. On the employee side, those who request it generally want to move on. This could be a different life choice, changing jobs, etc.” With two important nuances: no conventional termination for people over 62 or who are eligible for a full-rate pension “because they are subject to social security contributions and, on the company side, it would also cost too much. It is therefore not interesting for all parties.” The State monitors the unemployment insurance accounts and keeps seniors in employment.
Furthermore, companies may hesitate to offer a mutual termination when faced with an employee with significant seniority and a high salary. “While at the beginning, the mutual termination was an indemnity net of taxes and social security contributions, a social security contribution was then put in place. It was 20% and then increased to 30% on September 1, 2023. This is an additional cost for the employer who, for a termination of 10,000 euros, must add 3,000 euros. On higher salaries, this can be very expensive. In comparison, a severance payment is not subject to social security contributions,” specifies the expert. A barrier designed to keep seniors in employment, always.
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What to negotiate?
Once the parties have agreed and signed, they have fifteen days to retract. Then, the document is sent to the administration for approval, which again represents fifteen working days. “In total, it takes about a month and ten days between signing and leaving the company. This is an irreducible period,” explains Brice Briel. A rapid process that can also be implemented on the day of the interview prior to dismissal or during the notice period (Court of Cassation). For the employee, the advantage is to be covered by unemployment insurance, as for a dismissal. The minimum severance pay is the same as that for a dismissal, either legal or conventional according to the collective agreement if it is more favorable.
Before signing, there remains the question of the extra-legal sum granted to those who are not necessarily volunteers at the start. “France Travail will postpone the payment of unemployment benefit. However, it is possible to negotiate an additional amount in the range of Macron scalewhich corresponds to his seniority”, recommends the lawyer. Getting assistance from an elected official and/or a lawyer can help you get more and leave on good terms. “I don’t see any problem with this method of breaking up, which has become so widespread that today, resignation is no longer part of the culture”, concludes Maître Briel.
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