For the employee, a rupture conventionnelle (a statutory mutually-agreed termination) and a dismissal do not give rise to the same rights. The rupture conventionnelle guarantees at least the statutory severance pay (indemnité de licenciement), but with no notice period and no debate over the grounds. Dismissal adds the notice period and, if it is held to be without real and serious cause, damages, at the cost of an uncertain outcome. Both give entitlement to unemployment benefit.
The table compares the employee's rights in both cases, leaving aside more favourable collective-agreement provisions:
| Employee's right | Rupture conventionnelle | Dismissal |
|---|---|---|
| Termination payment | Specific payment, at least equal to the statutory severance pay, negotiable with no ceiling | Statutory or contractual severance pay, from eight months of service, except in the case of gross misconduct (faute grave) |
| Notice period | None: the agreement itself sets the termination date | Depending on length of service (one month from six months to two years, two months beyond), paid even if the employer waives it, except in the case of gross misconduct |
| Untaken paid leave | Payment in lieu | Payment in lieu |
| Damages | No debate over grounds: only the validity of the agreement can be challenged | If the dismissal is held to be without real and serious cause, within the limits of the barème |
| Unemployment insurance | Yes, subject to affiliation conditions | Yes, subject to affiliation conditions, including after gross misconduct |
The difference therefore does not lie in the floor payment, which is the same, but in everything that is added to it on one side and not on the other.
The specific rupture conventionnelle payment cannot be lower than the statutory severance pay (article L1237-13 of the Labour Code), or than the contractual severance pay where that is more favourable. Above that, the amount is freely negotiated. The floor calculation is set out in our article on the rupture conventionnelle payment.
The rupture conventionnelle involves no notice period: there is no question of either working it or waiving it (Cass. soc., 8 July 2015, no. 14-10.139). The employee therefore receives no payment in lieu of notice. If the negotiated payment stays at the floor, they leave with less than an employee who is dismissed and released from working their notice. That is the first point to build into the negotiation.
Two safeguards remain with the employee. The agreement can be challenged before the conseil de prud'hommes (France's labour court) within twelve months of its administrative approval (homologation) (article L1237-14). And the rupture conventionnelle does not amount to a waiver of sums arising from the performance of the contract: unpaid overtime can still be claimed. Only a settlement agreement (transaction) concluded after approval, and covering the performance of the contract rather than its termination, can settle this type of dispute (Cass. soc., 26 March 2014, no. 12-21.136).
Dismissal gives entitlement to the statutory severance pay from eight months of service, except in the case of gross misconduct (article L1234-9), and to the notice period provided for by article L1234-1: one month between six months and two years of service, two months beyond. If the employer releases the employee from working it, the employer owes the corresponding payment in lieu.
If it is challenged, the dismissal may be held to be without real and serious cause. The employee then obtains a payment set within the limits of the barème Macron (the statutory scale capping unfair-dismissal awards) (article L1235-3), in months of salary according to length of service. This barème is set aside where the dismissal is void. A challenge to the termination is time-barred after twelve months, whereas an overtime claim can cover the three years preceding the termination.
The downside is uncertainty. The outcome depends on the strength of the grounds and of the evidence, and the procedure goes through conciliation, judgment, sometimes a tie-break hearing (départage), then possibly appeal. Our article on compensation for dismissal without real and serious cause explains how to place a file within the range.
Take an employee paid 3,000 euros gross a month, with 8 years of service, in a company with at least eleven employees.
| Item | Rupture conventionnelle at the floor | Dismissal, notice waived |
|---|---|---|
| Statutory payment (8 × 1/4 of a month) | 6,000 euros | 6,000 euros |
| Notice (2 months) | none | 6,000 euros |
| Paid leave on notice (1/10) | none | 600 euros |
| If held to be without real and serious cause (3 to 8 months) | not applicable | 9,000 to 24,000 euros |
The starting gap comes from the notice: 6,600 euros that the rupture conventionnelle at the floor does not provide for. Beyond that, the barème range only applies if the dismissal is challenged and held to be without cause, which is never a given. These amounts are legal floors and ranges, not an estimate of the file.
The procedure safeguards the employee's consent, and every step counts:
Between signing and termination, close to a month therefore passes. For the employee's lawyer, it is during the withdrawal period that an amount signed too quickly can still be called into question without going before a judge.
The legal floor does not say what the departure is worth. For the employee's lawyer, the right benchmark is what the file would obtain if it went to litigation: the notice period the employee is giving up, any salary arrears, and the employer's exposure to the barème if the grounds for a possible dismissal are weak. The more weight these elements carry, the further the negotiated payment can move away from the floor.
Plato calculates the sums due and models the termination scenarios from the documents in the file, with each figure staying traceable back to its source. This is the purpose of its employment law specialisation. The decision belongs to the employee and their lawyer.
Rupture conventionnelle or dismissal: which route pays the employee more?
It depends on the file. The rupture conventionnelle guarantees at least the statutory severance pay, with no notice period, and the rest is negotiated. Dismissal adds the notice period and, if it is held to be without real and serious cause, a payment set by the barème Macron, but that outcome is never a given.
Does a rupture conventionnelle give entitlement to a notice period?
No. The agreement itself sets the termination date, and there is no question of either working a notice period or waiving it: no payment in lieu of notice is due. The negotiated payment is the only way to make up for what the notice period would have represented.
Does the employee receive unemployment benefit in both cases?
Yes. Both the rupture conventionnelle and dismissal, including for gross misconduct, give entitlement to unemployment benefit, subject to the affiliation conditions of the unemployment insurance scheme.
Can overtime still be claimed after a rupture conventionnelle?
Yes. The rupture conventionnelle does not amount to a waiver of sums arising from the performance of the contract. An overtime claim remains possible, over the three years preceding the termination, unless a settlement agreement (transaction) has been concluded on that point after approval.
Can the employee go back on a rupture conventionnelle?
Yes, in two ways. Within the fifteen calendar days following signing, they can withdraw without having to give reasons. After that, the agreement can be challenged before the conseil de prud'hommes within twelve months of its approval (article L1237-14).
Can a tool put figures on both scenarios?
Yes. Plato calculates the sums due under each route and models the termination scenarios from the documents in the file, with each figure staying traceable back to its source. The decision remains that of the employee and their lawyer.