Important clarification on securing intra-group mobility operations
In a ruling handed down on October 26, 2022, the social chamber of the Cour de cassation recalled that an intra-group transfer does not presuppose the existence of a tripartite agreement between the employee and successive employers. (Cass Soc 26 oct 2022, n°21-10495)
Previous case law had already accepted the possibility of transferring an employee’s employment contract from one company to another within the same group. (Cass. soc., June 8, 2016, n° 15-17.555)
In practice, therefore, a tripartite agreement is signed between the employee and the two successive employers, whereby the initial employment contract with the first employer is terminated and a new employment contract is concluded with the new employer.
But what happens if no such agreement is signed?
This question arose following the termination of an employee’s employment relationship with her first employer, when she was transferred to another company within the same group.
The employee then lodged a claim with the industrial tribunal for compensation on the grounds that the first company had dismissed her without real and serious cause.
The trial judges initially concluded that a tripartite agreement had been reached, with the second employer accepting the employee’s request and assuming the employer’s obligations, the first employer accepting the employee’s request and letting her go without terminating her employment contract, and the employee agreeing to the transfer.
In this ground-breaking case, the Cour de cassation noted that no tripartite agreement had been signed between the employee and her successive employers organizing the continuation of the same employment contract, and that consequently, without a tripartite agreement formalized in writing and by the agreement of the parties, the transfer of the employment contract was not secure.
Despite the fact that the change of employer has been accepted by all parties, the tripartite agreement must :
- be formalized in writing ;
- be signed by the initial employer, the new employer and the employee.
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AGN AVOCATS – Employment Law Department
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