Can the employee and the employer settle an amicable dispute?
Verified 20 January 2020 - Directorate for Legal and Administrative Information (Prime Minister)
Yes. Several methods of amicable settlement of disputes between the employee and the employer may be used: conventional mediation, participatory procedure and transaction. These methods of settlement allow the employee and the employer to find a solution to their dispute without going through a litigation procedure (prud'hommes, court of appeal). Conditions of validity vary depending on the method of payment chosen.
What is it about?
Conventional mediation allows for the amicable settlement of a dispute between the employee and the employer in order to avoid recourse to prud'homme council (CPH)..
The assistance of a mediator is compulsory.
Procedure
The employee and the employer are assisted by a mediator, who helps them resolve their dispute.
The mediator is chosen by the employee and the employer.
The mediator must demonstrate the qualification required to deal with the conflict or must provide, as the case may be, training or experience appropriate to the practice of mediation.
Mediation shall take place in accordance with the conditions laid down directly by the parties and the mediator.
Please note
the justice conciliator may also be requested to resolve the conflict between the employee and the employer.
Following mediation
Successful mediation
When mediation allows the employee and the employer to resolve their dispute, the latter enter into an agreement.
To be valid, the agreement must cover rights for which it is possible to negotiate.
The agreement can be approved by the council of prud'homme (with the agreement of the employee and the employer).
To obtain the license, the employee or the employer applies to the prud'homme council (CPH)..
However, the CPH may refuse to certify the agreement. It cannot change its content.
Approval of the agreement shall give enforceable force.. Thus, if one of the parties fails to comply with its commitments, the other party may request its enforcement.
Please note
the refusal of approval by the CPH deprives the agreement of the benefit of enforceability, but it does not cancel the agreement.
Mediation failed
If mediation does not resolve the dispute, the employee or employer may then refer the matter to the prud'homme council (CPH)..
The criminal proceedings shall apply under the usual conditions (conciliation and orientation phase and, if necessary, judgment of the case).
What is it about?
The participatory procedure allows the amicable settlement of a conflict between the employee and the employer in order to avoid recourse to the prud'homme council (CPH)..
Each party must be assisted by a lawyer.
Procedure
The employee and the employer enter into a participatory procedure agreement. The resolution sets out the period during which they undertake to find an amicable solution to the conflict.
Following the participatory procedure
Participatory procedure succeeded
Where the participatory procedure allows the employee and the employer to settle their dispute, the latter shall conclude an agreement with the assistance of their respective lawyers. This agreement summarizes the elements resolved in this procedure.
To be valid, the agreement must cover rights for which it is possible to negotiate.
The agreement can be approved by the council of prud'homme (CPH) with the agreement of the employee and the employer. To obtain the license, the employee or the employer applies to the (CPH).. However, the CPH may refuse to certify the agreement. It cannot change its content.
Approval of the agreement shall give enforceable force.. Thus, if one of the parties fails to comply with its commitments, the other party may request its enforcement.
Please note
the refusal of approval by the CPH deprives the agreement of the benefit of enforceability, but it does not cancel the agreement.
Participatory procedure failed
If the participatory procedure does not resolve the dispute, the employee or the employer can then enter prud'homme council (CPH)..
The criminal proceedings shall apply under the usual conditions (conciliation and orientation phase and, if necessary, judgment of the case).
What is it about?
The transaction is an agreement between the employee and the employer that ends a dispute without waiting for a judgment. It is established in the form of a contract, often called transaction protocolwritten and signed by the employee and the employer.
The assistance of the parties (by a lawyer, in particular) during the negotiation is optional, but it is preferable to ensure the validity of the transaction signed by the employee and the employer.
Who is involved?
The content of the transaction is freely negotiated by the employee and the employer. Most often, each party is represented by a lawyer during the negotiation and then during the drafting of the transactional protocol.
Conditions of validity
The transaction must meet the following conditions:
- Respect the general conditions of validity of contracts (lawful cause, free and informed consent of the parties, ability to contract)
- Reveal conflict between parties
- Provide for and mention reciprocal concessions (e.g. payment of compensation in return for the employee's undertaking not to refer the matter to the labor board)
The transaction can be concluded before or during a litigation procedure (labor or appeal).
If the transaction entered into is not valid, it may be annulled by the judge.
Warning
if the dispute is about break of the employment contract, the transaction may be concluded only after the date of termination of the contract.
At the end of the transaction
Transaction succeeded
To obtain approval for the transaction, the employee or employer submits the matter to the HPC.
Once the transaction has been signed, it is no longer possible to challenge its content in court. However, recourse to the prud'homme council (CPH) is possible in any of the following cases:
- The conditions which gave rise to its drafting are likely to lead to its cancelation
- The employee and/or employer does not respect the obligations set out in the transaction
The CPH cannot change the content of the transaction.
Approval of the transaction gives it enforceable force.. Thus, if one of the parties fails to comply with its commitments, the other party may request its enforcement.
Transaction failed
The CPH may refuse to certify the transaction if it considers that the agreement signed between the employee and the employer disadvantages one of the 2 parties. For example, the CPH may cancel the transaction if the transaction provides that a terminated employee receives less than the amount of severance pay to which he would be entitled.
If the transaction does not resolve the dispute, the employee or employer may then refer the matter to the prud'homme council (CPH)..
The criminal proceedings shall apply under the usual conditions (conciliation and orientation phase and, if necessary, judgment of the case).
- Labor Code: Article R1471Conventional mediation and participatory procedure (general principles), transaction (certification)
- Civil Code: Articles 1101 to 1111-1Transaction (validity)
- Civil Code: Articles 2044 to 2052Transaction (Consequences)