Resignation is a breach of the employee's exclusive employment contract. While the employer has little influence over this decision, case law requires employees to comply with certain obligations. Failure to comply with these obligations can result in sanctions. Therefore, it is important to be aware of this and to have HR management software. What are the employer's obligations towards an employee who resigns?
Resignation: the legal definition and some reminders
The French Labor Code clearly stipulates in Article L. 1231-1 that any employee wishing to terminate their employment contract is free to submit their resignation to their employer. The latter must come from his own initiative.
Resignation can be strictly defined as follows: "it is a unilateral act by which the employee clearly and unequivocally demonstrates his desire to terminate the employment contract."
The conditions necessary for an employee's resignation
Regardless of the context, a resignation must meet the following criteria in order to be legal:
- The decision to resign must be unilateral and exclusive to the employee;
- The resignation concerns the termination of an open-ended employment contract (CDI);
- The employee must express his desire to resign;
- The employee's decision must be made in a suitable environment, without interference or pressure from the employer.
If one or more of these conditions are not satisfactory, the resignation may be challenged. According to these conditions, repeated absence of the employee or abandonment of the position cannot be considered as a resignation.
The difference between resignation and mutual termination
If the resignation represents only a unilateral decision on the part of the employee, the implementation of a mutual termination procedure requires the agreement of both parties, that is, that of the employer and that of the employee. Furthermore, compared to resignation, a mutual termination agreement is more difficult to implement and is more regulated by law.
The difference between resignation and dismissal
Dismissal is also the result of a unilateral decision, but this time, it is the employer's decision. Furthermore, while the employee does not have to justify his decision in the case of resignation, for dismissal, the employer is obliged to provide a specific justification (the reason may be economic, personal, fault, etc.).
The difference between resignation and the acceptance of termination
Legally, the main difference between resignation and the acceptance of termination is the influence of the employer. Indeed, for resignation, the decision must come from the sole will of the employee, whereas for the act of termination, there may be influence from the employer.
The various obligations of the employer in the event of an employee's resignation
Verification of the employee's will
The employee's full will to resign is necessary for it to be legal. Otherwise, the latter may be called into question, or even reclassified as dismissal without apparent and serious justification. It is therefore the employer's duty to ensure the employee's free consent to resignation.
First, the consent and willingness to resign. This willingness must be free, clear, and come from the employee himself. The employee's desire to resign is not free in cases where:
- The employee has been pressured by their employer to resign;
- The employee is the victim of harassment by their employer or one of their superiors;
- The employee was forced to make the decision to resign under the influence of the employer, a superior, or another employee.
The employee's decision may also be called into question if it turns out to be caused by a poor work environment or specific problems that may have affected their will.
Second, the expression of the desire to resign. There must be no possible doubt as to the employee's desire to resign. The latter must have expressed their wish to the employer clearly and definitively.
However, in some cases, there may be confusion. For example, if the employee is absent for an extended period or has abandoned their position, the employer cannot determine that the employee has resigned if they have not received any notice or message expressing this. If the manager is faced with a similar situation, it is advisable to contact the employee asking them to return to their position. If they do not receive any response, the employer may initiate dismissal proceedings.
If the employee resigns impulsively after a confrontation or unpleasantness, or has simply threatened to resign, the request may be challenged. The employee's resignation cannot be considered valid. In this situation, the employee can reverse their decision (this is called retraction). Thus, the employer is obliged to maintain the position, or to reinstate the employee if the latter has left the company.
As a general rule, it is a good idea to wait for the final and definitive decision of an employee who wishes to resign.
Notice period
In the event of resignation, the existence of notice and its duration are set by law, collective collection or a company agreement (Article L1237-1 of the Labor Code). The calculation for the notice period begins the day after the resignation request is submitted.
If the employee expresses their intention to resign orally, the employer must ask them to submit their written request by submitting one of the following two documents:
- A letter delivered by hand with a delivery certificate dated and signed by the employee and the employer;
- A registered letter with acknowledgment of receipt.
The employer thus begins the notice period after submitting the letter. This procedure may be different. It may be altered by the collective agreement or company agreement and may establish stricter conditions relating to notice.
In certain cases, the employer may exempt the employee from giving notice of resignation in exchange for compensation. Notice is not required if the employee resigns due to pregnancy, childcare, or at the end of a business start-up leave.
Documents to be given to the employee
According to the French Labor Code, articles D. 1234-6, L. 1234-20, and R. 1234-9, upon an employee's resignation, the employer must provide them with a number of legal documents.
- The employer's certificate, allowing the employee to assert their rights with Pôle emploi.
- A work certificate that states the employee's entry and exit dates from the company, as well as the various positions held during this period. This document, in particular, may include a non-compete clause. The employer may decide to release the employee from this clause.
- A receipt for the final settlement of all accounts detailing all amounts to be paid to the employee after resignation (this includes unused paid leave, notice compensation, and other compensation and financial compensation). The employee is given 6 months to contest this document.
Resignation and compensation
Compensation in lieu of notice
This compensation is equal to the employee's salary if they had worked during the notice period. If the employee is accustomed to working overtime, the employer must take this into account.
Paid leave compensation
When the employment contract is terminated, the employee receives compensation for all unused paid leave, even if the termination is the employee's own. It can be calculated using the tenth method (the employee receives 1/10th of their gross salary during the reference period) or the salary maintenance method (the employee receives compensation as if they had continued to work). The employer is obliged to choose the method that is most advantageous for the employee.
Contractual severance pay
In the case of resignation, the employer is not obliged to pay the statutory compensation provided for dismissal. However, it is obliged to pay the employee their final salary.
