Termination of the employment contract following the death of the individual employer
It is not uncommon for a deceased person to have employed a housekeeper, home help or gardener for several years.
The death of the individual employer automatically terminates the employment contract with the employee. The contract does not automatically continue with the heirs. It ends on the date of the individual’s death, which also marks the start of the notice period. However, the end of the contract does not deprive the employee of his or her final salary or any other rights, such as compensation in lieu of notice or severance pay.
Similarly, the death of the individual employer does not exempt the heirs from certain legal obligations for which they subrogate to the deceased, such as declaring the employer’s death, notifying the employee of the end of his or her contract, drawing up and handing over to the employee his or her end-of-contract documents (certificate of employment, balance of all accounts, Pole Emploi certificate), and paying indemnities and final salary.
To carry out all these procedures efficiently, it is often necessary to assess the situation, going back to the origin of the professional relationship between the deceased individual employer and their employee.
But this inventory can sometimes be a real treasure hunt, or fraught with pitfalls. In fact, heirs are often more focused on their own bereavement and inheritance issues than on questions relating to their deceased parent’s employment contract.
It may therefore be useful and reassuring for the heir, as well as for his or her notary, to enlist the help of a specialist lawyer in order to secure the end of the employment contract.
For example, certain provisions of the November 24, 1999 national collective agreement for employees of individual employers are illegal, as they are less favorable to the employee than the legal provisions, and therefore inapplicable in practice.
If an heir or notary were to refer to these provisions when calculating the amount of the termination indemnity, he or she would find that the amount was lower than that stipulated by law, and would therefore not be respecting the employee’s rights. All heirs would then be exposed to a potential claim by the defrauded employee.
Similarly, the employee may make errors in his or her calculations and wrongly claim erroneous amounts from the estate of the individual employer. This is the case, for example, when the employee includes periods of sick leave in the calculation of seniority. In such cases, it may also be useful to have a lawyer explain the error to the employee.
In some cases, the stakes may be relatively low, for example when the employee has little seniority and/or low pay. But in other cases, which are not so rare, the stakes can quickly become high.
This is the case of the individual employer who is very old at the time of his or her death, and who had been using an employee, or even several employees, for many years.
In other cases, the individual employer may not have declared all or part of the employee’s work. This situation exposes the heirs to legal proceedings for undeclared work.
In such cases, it is necessary to assess the risk to which the estate is exposed and, if necessary, seek an amicable solution to settle with the employee, rather than face legal proceedings. Here again, the lawyer can negotiate, draft and submit a settlement agreement to the parties.
These situations generally represent several thousand euros for the defrauded employee and therefore for the heir. It is therefore very important to secure the situation quickly, especially as the notary must file an inheritance declaration with the tax authorities within six (6) months of the death of the individual employer. It may therefore be useful to evaluate and set aside certain sums on behalf of the estate.
As a reminder, the limitation period for any action relating to the performance of an employment contract is 2 years from the date on which the claimant knew or should have known of the facts giving rise to the claim (Article L. 1471-1 of the French Labor Code).
In addition, the limitation period for an action for recovery of wages is 3 years from the date of termination of the employment contract, and applies to sums due in respect of the 3 years prior to termination. (Article L. 3245-1 of the French Labor Code) Claims by an employee who feels cheated can therefore arise several years after the death of the individual employer, exposing the heirs to prolonged liability, even though the estate has already been settled.
Our lawyers are at your disposal to answer all your questions and advise you. Our meetings can be held face-to-face or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Employment law
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