Faced with a serious breach by the employer, the employee can either take a prise d'acte (terminating the contract themselves on the grounds of the employer's breaches), which ends the contract immediately, or ask the court for a résiliation judiciaire (termination of the contract by the court at the employee's request) while continuing to work. If the breaches are established, both routes have the effects of a dismissal without real and serious cause, or of a void dismissal (licenciement nul), depending on the case.
When the employer seriously fails in its obligations, the employee is not reduced to resigning. They have two tools that have the termination ruled to be the employer's fault.
| Prise d'acte | Résiliation judiciaire | |
|---|---|---|
| Who terminates the contract | The employee | The court, at the employee's request |
| Date of termination | Immediate | Date of the decision ordering it, if the employee is still working for the employer |
| During the proceedings | The employee no longer works and is no longer paid | The employee continues to work and to be paid |
| If the breaches are established | Effects of a dismissal without real and serious cause, or of a void dismissal | Effects of a dismissal without real and serious cause, or of a void dismissal |
| If the breaches are not established | Effects of a resignation | The contract continues |
The prise d'acte allows the employee to terminate the employment contract where the employer's breach is serious enough to prevent the contract from continuing (Cass. soc., 26 March 2014, no. 12-23.634). It is then for the court to draw the consequences: the termination has the effects of a dismissal without real and serious cause if the facts relied on justified it or, failing that, of a resignation (Cass. soc., 25 June 2003, no. 01-42.335).
Three rules make it a weighty decision:
The procedure is fast-tracked. Where the conseil de prud'hommes (France's labour court) receives a claim to characterise a termination initiated by the employee on account of facts they hold against their employer, the case goes directly before the trial panel (bureau de jugement), which rules on the merits within one month of the claim being filed (article L1451-1).
That leaves the question of income. A prise d'acte is not a case of involuntary loss of employment for unemployment insurance purposes: the court decision characterising the termination must be awaited to know whether the unemployment is involuntary (Unédic circular no. 2025-03). The circular provides for exceptions, in particular where the facts correspond to a case of legitimate resignation (démission légitime), such as non-payment of salary, and for a review of the situation after 121 days.
With a résiliation judiciaire, the employee asks the conseil de prud'hommes to order the termination of the contract on account of the employer's breaches. These breaches must be serious enough to prevent the contract from continuing: the Cour de cassation upheld the rejection of a claim based on a breach that had not prevented the working relationship from continuing for several months (Cass. soc., 26 March 2014, no. 12-35.040). Throughout the proceedings, the employee continues to work as normal. The risk is of a different kind: if the court rejects the claim, the contract continues, without the employee having lost their job.
If the résiliation is ordered, it can only take effect on the date of the court decision ordering it, provided that on that date the employee is still working for their employer (Cass. soc., 11 January 2007, no. 05-40.626). It gives entitlement to the payments for an unjustified dismissal, or a void dismissal depending on the breaches in question.
The employer sometimes dismisses the employee during the proceedings, for other facts arising while the contract continued. The court must then first examine whether the claim for résiliation was justified; only if it was not does it rule on the dismissal (Cass. soc., 12 July 2005, no. 03-43.603).
Where the termination is ordered by the court on the grounds of the employer's fault, or follows a prise d'acte ruled on under article L1451-1, the award is determined under the rules of article L1235-3, in other words the barème Macron (the statutory scale capping unfair-dismissal awards) (article L1235-3-2).
The exception is voidness. Where the termination has the effects of a void dismissal on one of the grounds listed in points 1 to 6 of article L1235-3-1, such as moral or sexual harassment, discrimination or the violation of a fundamental freedom, the barème is set aside and the award cannot be lower than the salary for the last six months. The characterisation of the breaches relied on therefore bears directly on the amount.
Take an employee paid 3,000 euros gross a month, with 5 years of service, in a company with more than eleven employees, whose prise d'acte or claim for résiliation is held to be founded on breaches that do not render the dismissal void.
| Item | Calculation | Amount |
|---|---|---|
| Payment in lieu of notice (2 years or more) | 2 months of salary | 6,000 euros |
| Paid leave on notice | 10% of the notice payment | 600 euros |
| Statutory severance pay | 1/4 × 3,000 euros × 5 years | 3,750 euros |
| Barème Macron (5 complete years) | 3 to 6 months of salary | 9,000 to 18,000 euros |
| Total | 19,350 to 28,350 euros |
The notice follows article L1234-1, the severance pay article R1234-2, and the range the "5 years" line of article L1235-3. A more favourable collective agreement changes these amounts, and any salary arrears, such as unpaid overtime, are added to them.
If the prise d'acte is held to be unjustified, the calculation is reversed: none of these sums is due, and it is the employee who may owe the payment in lieu of their resignation notice period. With a résiliation judiciaire, failure leaves the contract in place.
Any claim relating to the termination of the employment contract is time-barred after twelve months from notification of the termination (article L1471-1, paragraph 2). Under paragraph 3 of the same article, this time limit does not apply to claims for payment of salary, nor to those based on discrimination or on moral or sexual harassment. For the details of compensation, see how to estimate compensation for dismissal without real and serious cause.
The two routes do not place the same risk on the employee. The prise d'acte frees the employee immediately, but they alone bear the risk: if the breaches are not found serious enough, they have resigned. The résiliation judiciaire keeps the employee in the company during the proceedings, which assumes that continuing to work remains possible. Where both parties want to end the relationship, a negotiated exit remains open: see what a rupture conventionnelle (a statutory mutually-agreed termination) is worth to the employee.
In every case, both scenarios are valued before the decision. Plato calculates the sums due and models the termination scenarios from the exhibits in the file, with each amount staying traceable back to its source: this is the purpose of its employment law specialisation. The final check remains the lawyer's.
What is the difference between a prise d'acte and a résiliation judiciaire?
With a prise d'acte, the employee terminates the contract themselves, immediately, and the court then decides whether the termination amounts to a dismissal or a resignation. With a résiliation judiciaire, they ask the court to terminate the contract and continue to work during the proceedings.
What does the employee risk if their prise d'acte is not justified?
It has the effects of a resignation (Cass. soc., 25 June 2003, no. 01-42.335). The employee loses the termination payments and owes the employer the payment in lieu of the resignation notice period not worked (Cass. soc., 8 June 2011, no. 09-43.208).
Can a prise d'acte be withdrawn?
No. It brings about the immediate termination of the employment contract and cannot be withdrawn (Cass. soc., 14 October 2009, no. 08-42.878).
On what date does a résiliation judiciaire terminate the contract?
On the date of the court decision ordering it, provided that on that date the employee is still working for their employer (Cass. soc., 11 January 2007, no. 05-40.626).
Does the barème Macron apply to a justified prise d'acte?
Yes, except where the dismissal is void. Article L1235-3-2 refers to the barème of article L1235-3 where the termination is ordered on the grounds of the employer's fault or follows a prise d'acte, unless it has the effects of a void dismissal on one of the grounds in article L1235-3-1.
Does an employee who takes a prise d'acte receive unemployment benefit?
A prise d'acte is not a case of involuntary loss of employment: save for the exceptions provided for by Unédic circular no. 2025-03, in particular for non-payment of salary, benefit awaits the decision characterising the termination.
How long does the conseil de prud'hommes take to rule on a prise d'acte?
Article L1451-1 provides that the case goes directly before the trial panel (bureau de jugement), which rules on the merits within one month of the claim being filed.