In order to verify the reciprocal concessions made in a settlement, the judge may analyze and qualify the facts set out therein

Court of Cassation, Social Division, 13 September 2023, no. 21-25.481

An employee of the company FOI 44 was dismissed for gross misconduct on 14 October 2016, on the grounds of a culpable lack of results resulting from repeated and willful behavior on his part, in particular his refusal to comply with instructions, a total absence from work and willful negligence. 
On 28 October 2016, the parties signed a settlement agreement. 
On 9 July 2021, the Rennes Court of Appeal declared the settlement between the parties null and void and ordered the employer to pay the employee substantial sums for dismissal without real and serious cause, noting that there had been no mutual concession and that the grievances alleged against the employee did not justify dismissal for serious misconduct. 
The Company appealed to the French Supreme Court, criticizing the Court of Appeal for having carried out an analysis that led it to judge the facts of the case, rather than simply taking into account the existence of grievances. 
The Court of Cassation agreed with the Court of Appeal, holding that in order to determine whether or not the concessions contained in the settlement were genuine, the court may, without infringing the res judicata effect of the settlement, restore the facts set out in the letter of dismissal to their true character. 

Thus, the Court of Appeal having noted that the letter of dismissal criticized the employee for insufficient sales results, insufficient canvassing, his failure to respond to the employer’s request for an action plan, and his refusal of the new positions offered by the employer, was able to decide that these facts could not be classified as misconduct. 
Consequently, in the absence of a reciprocal concession, the settlement was null and void.