First of all, if the employment contract is still in progress, it is important to consider all the hypotheses of breach of this contract in order to assess the consequences, particularly financial consequences for the employee.
In fact, in the face of acts of moral harassment, a modification of the employment contract refused by the employee, a return from maternity or parental leave of education or finally a medical unfitness notice not followed by effect, he It frequently happens that the employee requests from the employer a dismissal or from now on a contractual break, in exchange for which the employer who accedes to the request of the employee concludes with the latter a transaction (this point being still discussed for the conventional break). However, if these two routes open the possibility for the employee to benefit from the unemployment insurance, they will very strongly reduce or even completely close his chances of subsequently contesting the execution of his employment contract, or even the reasons for his breakup.
It is up to the employee to “sacrifice” a future pecuniary sentence of the employer more or less certain in exchange for a breach of the immediate employment contract and the benefit of unemployment insurance.
In this type of situation, recourse to an act of rupture or judicial termination is often more appropriate in order to safeguard the employee’s interests. If the latter “renounces” to this type of break, the financial counterpart proposed by the employer in the context of a dismissal or a contractual break must be of sufficient interest to the employee.
However, in practice, even though the employee would have the opportunity to legitimately go to the taking of act or the judicial termination, the pressures exerted by the employer make him accept another mode of rupture, with an allowance derisory departure.
What is very important here and that the employee can very often not analyze alone is if the employer’s attitude allows or not to go towards a breach of the contract of employment that could be attributable to it and would thus produce the effects of a dismissal without real and serious cause and in that case, what is the probability of the employer’s conviction before the labor tribunal and the courts of the second degree and the total amount of that conviction
It is this analysis which will make it possible to release a realistic amount of compensation which will be used as starting point of negotiation. And you can imagine, the lawyer, with his experience of the subject, is the best able to perform this analysis.
You also see that this analysis is important, even if the client contacts us having already planned everything with his employer both in terms of the type of breakage envisaged that the starting amount determined.
How many times have I been contacted by a client who just wanted me to “control” the transaction he was about to sign with his employer, a transaction of course written by the employer’s lawyer and the amount was already negotiated!
You can easily imagine that I had to explain each time that my role could not be limited to that, at the risk of incurring my professional liability if the client subsequently had a change of heart and that my duty of advice required me to have the freedom to put everything flat and discuss each point.