Notice period

When an employee’s employment contract is terminated by either party, the contractual relationship does not end immediately. In most cases, a notice period must be observed.

This is the period between the moment when one of the parties – the employee or the employer – informs the other of their decision to terminate the employment contract and the employee’s actual departure.

This is a transitional period designed to ensure that an employee whose employment contract is terminated does not find themselves out of work and without pay from one day to the next. Where the employee chooses to terminate their employment contract, the notice period ensures continuity of work in the role that the resigning employee has chosen to leave.

Notice is normally required regardless of which party initiates the termination. The parties may not waive this requirement in advance.

New Article L.41: The termination of a contract of indefinite duration is subject to a period of notice given in writing by the party initiating the termination. The notice period begins on the date the notice is served. The reason for the termination must be stated in the notice.

 In the absence of collective agreements or decrees serving in their place, the notice period is:

• 8 days for staff paid by the day or by the week;
• 1 month for workers paid monthly;
• 2 months for supervisors and equivalent staff;
• 3 months for executives and management staff.

A fixed-term contract is not subject to any notice requirement if everything proceeds as normal.

Notice is only mandatory in two cases: it must be given upon termination of a permanent contract (CDI), and also in the event of early termination of a fixed-term contract (CDD).

In the event of termination during the probationary period, a notice period must also be observed; both the employer and the employee must give each other at least a period of notice, which will vary depending on the duration of the employment relationship, as all is not lost.

It is rare for notice not to be given. This is particularly the case:

• Where the employee is exempt from the notice period;
• Where the employee has committed serious or gross misconduct;
• Where the employee is unable to perform their duties, for example due to professional incapacity;
• In cases of exemption provided for by law: employees who are visibly pregnant, or employees who wish to raise their child following maternity or adoption leave.  

The notice period begins on the date the letter of dismissal is served. Whilst the termination of the employment contract takes effect on the date the registered letter with acknowledgement of receipt notifying the dismissal is posted, the notice period itself only begins on the date that letter is served.

The Labour Code provides that an employee who has been made redundant and has found new employment may interrupt the notice period. Generally speaking, this right applies to both individual and collective redundancies for reasons of economic necessity, in the interests of job security.

In the event of resignation, the notice period generally begins on the day the resignation is notified.

During the notice period, the employment contract continues to operate under normal terms and conditions. The employee remains part of the company. They are counted as part of the workforce. They retain the right to vote and stand for election.

The employer may not impose any changes to the employee’s employment contract during the notice period.

During the notice period, each party must continue to fulfil the obligations arising from the employment contract. The employer must provide work for the employee. The employer may not impose a change to the employee’s employment contract, but may, however, impose a change to their working conditions.

For example, the employer may not require an employee who is serving their notice period to work at a new place of work outside the same geographical area, or in a job requiring fewer qualifications or offering lower pay. However, the employer may rely on all the clauses of the contract to which the employee remains bound, in particular the mobility clause or quota clauses.

If the employer makes it impossible for the employee to serve their notice period or imposes a change to their employment contract, the employee shall be entitled to cease work immediately and to claim payment of compensation in lieu of notice, as if the notice period had been served in the normal course.

If it is impossible for the employee to carry out their usual duties during the notice period – for example, because their post has been made redundant – the employer may ask the employee to carry out other work, provided that the essential terms of the contract, such as pay, job classification or qualifications, are not affected.

Example:

• A receptionist whose post has been made redundant is entitled to refuse to work out her notice period as a chambermaid.
• Similarly, an employer cannot require an employee employed in a ???? capacity within the company’s senior management to serve their notice period whilst remaining constantly at the employer’s disposal or to stay at home without, however, exercising the powers and prerogatives of their role.

In return for the employee’s usual work, the employer must maintain the amount and method of the employee’s remuneration. The employer must also maintain the benefits in kind from which the employee previously benefited, such as accommodation or a company car. Nor may the employer withdraw the telephone or laptop made available to the employee for both personal and professional use, as doing so would constitute a reduction in the employee’s remuneration.

An employee serving notice must carry out their work as normal. In principle, they remain subject to their usual working hours. However, they are frequently authorised to take time off ‘to look for work’. This authorised absence, provided for under the Labour Code, is often paid in the event of dismissal, but less frequently in the event of resignation. The employee is generally entitled to a few hours per day, to be taken in accordance with the terms agreed by the parties, or, failing that, one day at the employer’s discretion and one day at the employee’s discretion. Nevertheless, if the employer and employee agree, these hours may be taken together at the end of the notice period.

The employer may only refuse to grant these hours off if they can demonstrate that they have become unnecessary, for example because the employee has found a new job. Furthermore, an employee who has not exercised the right to take these hours cannot, in principle, claim compensatory payment, unless otherwise provided for in a collective agreement. Hours taken for job-seeking purposes cannot normally shorten the notice period.

The employee must carry out their work as normal during their notice period. The employee’s refusal to carry out their work as normal during their notice period constitutes serious misconduct justifying immediate termination without payment of the notice period.

What happens if an employee commits serious misconduct during their notice period?

Where an employee commits serious misconduct during their notice period, the employer must initiate disciplinary proceedings. The employer must then summon the employee to a meeting and notify them in writing that their serious misconduct results in the termination of the contract and immediately brings the notice period to an end.

Serious misconduct committed by the employee whilst serving their notice period has two effects:

• Firstly, it terminates the notice period;
• Secondly, it deprives the employee of the portion of the compensation in lieu of notice corresponding to the period remaining until the end of the notice period. However, the portion of the notice period already served is payable.

The employer cannot rely on serious misconduct committed during the notice period to alter the nature or classification of the termination of the employment contract. A dismissal on the grounds of a simple valid and serious cause does not become a dismissal for serious misconduct.

Serious misconduct committed during the notice period cannot result in the loss of the right to severance pay. This right arises on the date of notification of the dismissal, even if payment is deferred until the end of the notice period. The decision to terminate the contract, once taken by the employer, has settled the parties’ position once and for all and cannot be called into question by subsequent events.

Serious misconduct committed before the dismissal but discovered afterwards entitles the employer to terminate the notice period. No compensation is payable for the remaining part of the notice period.

Serious misconduct committed by an employee who has resigned during their notice period makes it impossible to continue the employment contract and justifies their dismissal.

Can the notice period be extended?

With the employee’s agreement, the notice period may be extended. The employer may decide to apply a longer period.

However, please note that it is important to confirm this agreement in writing. In the event of a dispute, this will enable you to prove the existence of this agreement with the employee.

If you cannot establish that an agreement to extend the notice period existed, the courts will rule that the continuation of the employment relationship beyond the end of the originally agreed notice period resulted in the formation of a second contract.

Conversely, it is also possible to shorten the notice period so that the employee leaves the company earlier. The agreement of both parties is also required.

In principle, the notice period begins to run upon notification of the termination of the employment contract. However, the start of the notice period may be deferred.

Can the notice period be suspended or interrupted?

The notice period cannot be extended or interrupted by any event. Thus, neither illness, nor accident, nor strike occurring during this period can affect its duration.

There are, however, some exceptions:

• If an employee suffers an accident at work during their notice period, the end of the notice period is postponed by the corresponding duration;
• Specific provisions in a collective agreement; taking annual leave may also postpone the end of the notice period by the same amount of time.

You may suspend the notice period, as the period of paid leave is not to be confused with the notice period. These are two separate periods.

If you have set the date of the employee’s paid holiday before giving notice of termination, the notice period will be suspended (temporarily interrupted) during this absence.

However, if notice is given before the holiday dates have been set and you agree with the employee that the holiday will be taken during this period, the notice period will not be suspended, unless you agree to postpone the end of the notice period to allow for the holiday.