- Human resources
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Theoretical penalty(s) of non-compliance subject to the judge's discretion and, where applicable, to certain conditions
- [to be determined] € FineRisk of reclassification of this contractual termination as dismissal without real and serious cause
Payment of a contractual termination indemnity
Scope of application
Employer having hired an employee on CDI (open-ended contract) and wishing to terminate the contract amicably with his employee.
Exclusion
The contractual termination is open to the employee employed only on CDI. The system therefore does not apply to employees on fixed-term contracts or temporary contracts.
Individual contractual termination is prohibited in the following cases:
- It is concluded under fraudulent conditions or in the absence of an agreement concluded between the employee and the employer.
- It is offered as part of a collective agreement for the forward-looking management of jobs and skills (GPEC) or a job protection plan (PSE)It is offered as part of a collective agreement on collective contractual termination
- The conventional termination procedure aims to circumvent the guarantees provided for the employee in terms of redundancy.
The contractual termination can be canceled by the industrial tribunal (CPH) if the employee establishes that it was signed when his consent was not free. For example :
- The contractual termination was signed in a context of moral harassment
- The employer exerted pressure to encourage the employee to choose a contractual termination
Description
Whatever his seniority, the employee who signs a validated contractual termination receives a specific indemnity for contractual termination, at the end of the termination of the contract.
The indemnity cannot be lower than the legal severance indemnity.The calculation of the specific indemnity varies according to seniority and remuneration.
Seniority greater than 10 years
The legal compensation is calculated on the basis of the gross remuneration received by the employee before the termination of his employment contract. Exceptional or annual bonuses and gratuities are taken into account.
The compensation cannot be less than the following amounts:
The indemnity cannot be lower than the legal severance indemnity.The calculation of the specific indemnity varies according to seniority and remuneration.
Seniority greater than 10 years
The legal compensation is calculated on the basis of the gross remuneration received by the employee before the termination of his employment contract. Exceptional or annual bonuses and gratuities are taken into account.
The compensation cannot be less than the following amounts:
- 1/4 of a month's salary per year of seniority for the first 10 years
- 1/3 of a month's salary per year of seniority from the 11th year
The salary taken into account, called the reference salary, is determined by taking into account, according to the most advantageous formula:
- Either the monthly average of the last 12 months preceding the termination of the contract or, when the employee's seniority is less than 12 months, the monthly average of the remuneration of the months preceding the termination of the contract
- That is ⅓ of the last 3 months. In this case, the exceptional or annual bonuses and gratuities are taken into account in proportion to the time worked. If an annual premium has been received, it is necessary to add 1 / 12th of the amount of the premium to each of the last 3 reference months.
Seniority is calculated from the effective termination date of the employment contract, that is to say at the end of the notice period, even if it is not executed.
The termination of the employment contract is notified to the employee by the employer by registered letter with acknowledgment of receipt (LRAR) or by hand delivery of this letter.
In the event of an incomplete year, the allowance is calculated in proportion to the number of full months.
Example: for a reference salary of € 1,500, the minimum compensation with a seniority of 12 years and 9 months is: [(1,500 x 1/4) x 10] + [(1,500 x 1/3) x 2] + [(1,500 x 1/3) x (9/12)] = 5,125 €.
If the employee worked full time before moving to part time (or vice versa), the allowance is calculated in proportion to the length of time he worked full time and part time.
Example: an employee worked 10 years full-time, then 3 years part-time. His average gross salary during the last 12 months part-time is € 1,000 (or € 2,000 full-time). The compensation is calculated as follows: (2,000 x 1/4 x 10) + (1,000 x 1/3 x 3) = € 6,000.
Seniority less than 10 years
The legal compensation is calculated on the basis of the gross remuneration received by the employee before the termination of his employment contract.
The indemnity cannot be less than 1/4 of a month's salary per year of seniority.
Seniority is calculated from the effective termination date of the employment contract, that is to say at the end of the notice period, even if it is not performed.
The termination of the employment contract is notified to the employee by the employer by registered letter with acknowledgment of receipt (LRAR) or by hand delivery of this letter.
In the event of an incomplete year, the allowance is calculated in proportion to the number of full months.
Example: for a reference salary of € 1,500, the minimum indemnity with a seniority of 3 years and 6 months is: [(1,500 x 1/4) x 3] + [(1,500 x 1/4) x (6/12)] = € 1,312.50.
The reference salary is determined by taking into account, according to the most advantageous formula:
The termination of the employment contract is notified to the employee by the employer by registered letter with acknowledgment of receipt (LRAR) or by hand delivery of this letter.
In the event of an incomplete year, the allowance is calculated in proportion to the number of full months.
Example: for a reference salary of € 1,500, the minimum compensation with a seniority of 12 years and 9 months is: [(1,500 x 1/4) x 10] + [(1,500 x 1/3) x 2] + [(1,500 x 1/3) x (9/12)] = 5,125 €.
If the employee worked full time before moving to part time (or vice versa), the allowance is calculated in proportion to the length of time he worked full time and part time.
Example: an employee worked 10 years full-time, then 3 years part-time. His average gross salary during the last 12 months part-time is € 1,000 (or € 2,000 full-time). The compensation is calculated as follows: (2,000 x 1/4 x 10) + (1,000 x 1/3 x 3) = € 6,000.
Seniority less than 10 years
The legal compensation is calculated on the basis of the gross remuneration received by the employee before the termination of his employment contract.
The indemnity cannot be less than 1/4 of a month's salary per year of seniority.
Seniority is calculated from the effective termination date of the employment contract, that is to say at the end of the notice period, even if it is not performed.
The termination of the employment contract is notified to the employee by the employer by registered letter with acknowledgment of receipt (LRAR) or by hand delivery of this letter.
In the event of an incomplete year, the allowance is calculated in proportion to the number of full months.
Example: for a reference salary of € 1,500, the minimum indemnity with a seniority of 3 years and 6 months is: [(1,500 x 1/4) x 3] + [(1,500 x 1/4) x (6/12)] = € 1,312.50.
The reference salary is determined by taking into account, according to the most advantageous formula:
- Or the monthly average of the last 12 months preceding the termination of the contract. When the employee's seniority is less than 12 months, the average monthly remuneration for the months preceding the termination of the contract is taken into account.
- Or 1/3 of the last 3 months. In this case, the exceptional or annual bonuses and gratuities are taken into account in proportion to the time worked. If an annual premium has been received, it is necessary to add 1 / 12th of the amount of the premium to each of the last 3 reference months.
If the employee worked full time before moving to part time (or vice versa), the allowance is calculated in proportion to the length of time he worked full time and part time.
Example: an employee worked 3 years full time, then 2 years part time. His average gross salary during the last 12 months part-time is € 1,000 (or € 2,000 full-time). The compensation is calculated as follows: (2,000 x 1/4 x 3) + (1,000 x 1/4 x 2) = € 2,000.
Example: an employee worked 3 years full time, then 2 years part time. His average gross salary during the last 12 months part-time is € 1,000 (or € 2,000 full-time). The compensation is calculated as follows: (2,000 x 1/4 x 3) + (1,000 x 1/4 x 2) = € 2,000.
Note: for a seniority of more or less than 10 years, part-time parental education leave is considered as a period of full-time work.
Conventional, contractual or customary provisions may provide for a calculation formula other than that of the legal indemnity, which is more advantageous for the employee. In this case, the employee receives the highest compensation. An increased indemnity (supra legal) can also be negotiated and be added to the termination indemnity.
Conventional, contractual or customary provisions may provide for a calculation formula other than that of the legal indemnity, which is more advantageous for the employee. In this case, the employee receives the highest compensation. An increased indemnity (supra legal) can also be negotiated and be added to the termination indemnity.
Authority
Service régional de contrôle de la Dreets
Responsible(s)
Employeur
