The French labor law clearly distinguishes between two mechanisms for ending a career: voluntary retirement, decided by the employee, and retirement initiated by the employer. Each follows its own rules, and the ability to refuse depends entirely on which side you are on. The employee’s age, the procedure followed, and adherence to deadlines determine the validity of the refusal.
Progressive retirement and employer refusal: an underestimated legal area
Most articles on the subject focus on permanent departure. Progressive retirement, on the other hand, raises more subtle questions. This system allows an employee to reduce their working hours while receiving a portion of their pension.
The employer has limited leeway. They can only refuse the request for reduced working hours for a specific reason: incompatibility with the economic activity of the company. This refusal must be in writing, justified, and explain the concrete consequences on the continuity of the activity or recruitment difficulties.
If the employer does not respond within two months, the agreement is deemed granted. Silence here works against the company, which provides notable protection for the employee.
A particular case deserves attention: an employee already working part-time or on a reduced day rate, within the range provided by the system, can request the liquidation of a portion of their retirement without seeking a new reduction. In this configuration, there is simply no employer agreement to obtain. The question of whether one can refuse a retirement departure then becomes irrelevant for the employer.
Voluntary departure of the employee: can the employer oppose it?
When an employee reaches the legal retirement age, they can decide to leave the company on their own initiative. The employer cannot refuse this voluntary departure. The employee does not need to obtain an agreement: they notify their decision, respect the applicable notice period, and receive their departure indemnity.
The notice period to be respected depends on the employee’s seniority and, in some cases, the applicable collective agreement. The procedure remains simple: a notification letter is sufficient. The employer can try to convince the employee to stay, but they have no legal leverage to block the departure.
Voluntary departure indemnity
The employee who leaves on their own initiative receives a legal retirement departure indemnity, calculated based on their seniority. This indemnity is distinct from the severance pay and is generally less favorable. The collective agreement may provide for an amount higher than the legal minimum.
Retirement imposed by the employer: conditions to be met
Imposed retirement falls under a much stricter framework. The employer cannot impose retirement on an employee before they reach the age for automatic full pension entitlement. Before this age, any imposed retirement is considered a dismissal, with the financial and legal consequences that entails.
Between the age of automatic full pension entitlement and 70 years, the employer must follow an annual questioning procedure:
- The employer questions the employee in writing, within the timeframe set by the Labor Code, about their intention to leave the company to retire.
- The employee has one month to respond. Silence does not constitute acceptance: it is interpreted as a refusal.
- If the employee refuses, the employer cannot proceed with the retirement during the current year. They will have to renew their request the following year.
The absence of written questioning prevents retirement during the concerned year. This procedural failure produces a legal effect unfavorable to the employer, equivalent to a negative response from the employee.
Can the employee refuse indefinitely?
This right of refusal is not unlimited. From the age of 70, the employer can impose retirement on the employee without needing to obtain their agreement. The decision is neither a dismissal nor a mutual termination: it is an autonomous method of terminating the employment contract.
The employee who is retired receives an indemnity at least equal to the legal severance pay, which constitutes more favorable treatment than the voluntary departure indemnity.
Risks of requalification as wrongful dismissal
The line between regular retirement and disguised dismissal fuels ongoing litigation before labor courts. Several situations expose the employer:
- Retirement imposed before the age of automatic full pension entitlement, even if the employee meets the contribution duration conditions.
- Absence of the written annual questioning procedure between the age of full pension entitlement and 70 years.
- Pressures exerted on the employee to formalize a voluntary departure, while the initiative comes from the employer.
- Mutual termination proposed to an employee close to retirement in order to circumvent the retirement rules.
In case of requalification, the employee may obtain damages for dismissal without real and serious cause, in addition to severance pay. The cost of an irregular retirement far exceeds that of a compliant procedure.
Retirement departure and notice period: a frequent point of friction
The notice period often constitutes a subject of informal negotiation. The employee who leaves voluntarily must respect a notice period, the duration of which varies according to seniority and the collective agreement. The employer can exempt the employee from the notice period, but this exemption does not lead to a reduction in the departure indemnity.
In the case of imposed retirement, it is the employer who must respect the notice period. Failure to do so entitles the employee to a compensatory indemnity.
The right to refuse a retirement departure thus depends on the mechanism at play. The employee who wants to leave cannot be held back. The employer who wants to retire an employee before the age of 70 must obtain their agreement each year, in writing, in the prescribed forms. The formality protects both parties, provided it is rigorously respected.
