There was until then the dismissal or resignation

There was, until then, the dismissal or resignation. Last summer, another mode of rupture of the contract of employment made its entry into the Labour Code: the conventional rupture, which legally translated the separation by mutual agreement. They gave rise, so far, to negotiated departures made up by dismissal for personal reasons, with risk of litigation. According to the first monthly statistics just published the Ministry of labour, this kind of expensive professional amicable divorce to the President of the Medef, Laurence Parisot, monte quickly supported: 66.951 cases have been recorded since August, including 13.326 on the month of March alone. The monthly unemployment statistics published by pole employment shows that a proportion not negligible these employees enrolled in unemployment: they have been close to two out of three in January, 40 in February and slightly more than 50 in March. The share of conventional failures among the reasons for registration at pole employment in accumulated on October 2008 - March 2009 remains very low (1).

There is nothing to say that these failures are disguised layoffs. By contrast, the statistics show that the filtering of files by the departmental directorates of labour (DDTEFP) is important: Party of 27 in August, the rejection rate still represented 15 of the requests received in February and March. It is however too early to draw conclusions on the role of protector of the employee that the trade unions, signed the agreement of "modernization of the labour market" that created the conventional failure, have sought to give the administration. This will require much waiting, this summer, the publication of a detailed study of the Dares should include whether the control will beyond the only compliance with the rules of procedure.

In these times of crisis, one of the major issues concerning the risk of proliferation of conventional failures to avoid a social plan. The Act provides that they cannot be integrated in a system of management of jobs and skills (GPEC) or a social plan, contrary to an agreement signed in December in Loxam, a rental of equipment for construction and industry. In a circular of 17 March, the Ministry of labour said in addition that "a difficult economic environment for the company, or even a backup plan of employment tailored to other jobs, are not alone sufficient to exclude the application of the conventional break but that the coordinated and organized conventional breaks character may, however, constitute an additional index".

The precedent of the CNE

For the time being, judicial balance of professional divorce settlement cannot in any case that meet employers. Very few procedures have been undertaken by employees before labor councils. But the fiasco of the new contract hires (CNE) should lead companies to extra careful if they want to avoid the risk of freedom of consent of the employee to the impugned rupture. Created in 2004, the CNE was supposed to bring maximum legal protection to employers through a trial period of two years, relieving common law of dismissal. Open to very small businesses, in which trade unions are nonexistent, the litigation has developed more time to develop, but it was enough of a few emblematic business to bring the CNE in the common law.