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France: Misrepresentation or Deceit May Render the Termination by Mutual Agreement Null and Void

Author: Olivier Kress

Misrepresentation/deceit may render the termination by mutual agreement of an employment contract null and void if it was instrumental in the other party’s consent.

The French Supreme Court recently rendered a decision regarding the validity – or lack thereof – of termination by mutual agreement of the employment contract (“rupture conventionnelle”) in the context of misrepresentation on the employee’s part (Cass. soc. June 1st 2022, n°20-19.957).

In this case, a business advisor and his employer agreed to terminate his employment contract. The employee’s pretence for termination was a desire to change professional paths. It later came to light that the former employee had, in fact, been hired by a competitor. The company decided to bring legal proceedings before the courts as it deemed that its consent had been vitiated. The Court of Appeal ruled in the employer’s favour.

The French Supreme Court held that misrepresentation/deceit may render the termination by mutual agreement of an employment contract null and void where the deceitful party’s actions are such that it is obvious that, if said party did not behave that way, the other party would not have entered into the agreement.

The French Supreme Court thus ruled that the Court of Appeal could not render the termination agreement null and void simply because the employee had disingenuously claimed that he was going to change career paths in order to obtain his employer’s consent to mutual termination.

In order for the agreement to be null and void, the Court of Appeal would have had to find that the project the employee presented to his employer was what made the latter amenable to acquiesce to the termination by mutual agreement of the employment contract.

Key Action Points for Human Resources and In-house Counsel

This case goes to show that although an employer may feel aggrieved by a former employee’s misrepresentation of the reasons behind his departure from the company, nullifying the termination by mutual agreement of the employment contract will only be possible if the misrepresentation in question was the reason why the employer agreed to let the employee go.