An employee on a permanent contract may leave their job whenever they wish, without having to justify it. But their decision must be unambiguous and the notice period properly managed: otherwise, the departure may turn into a dispute, or even be requalified as a dismissal.
What is a resignation?
It is the termination of a permanent contract, after the probationary period, at the employee's initiative (Article 172.3). During the probationary period, this is termination of the probation, which follows different rules.
The employee is free to resign without having to justify the decision. However, their intention must be express and unequivocal (Article 172.38): a hasty departure after an argument, a prolonged absence or a remark made in a moment of anger is not enough to amount to a resignation.
How to resign
The Code does not impose any particular form. But only a dated written document can prove a clear intention and fix the starting point of the notice period.
In our view, a resignation should always be in writing, dated and handed over against a signed receipt or sent by registered post. Once given, it can only be withdrawn with the employer's agreement.
Notice
The termination only takes effect on expiry of the notice period (Article 172.39), the length of which is the same as for dismissal (Article 172.23):
- 1 month for operational staff;
- 2 months for supervisors and foremen;
- 3 months for managers and equivalent staff.
During the notice period, the contract continues: the employee works normally and the employer may change neither their duties nor their pay.
Cases where the notice is not worked
- Agreement of the parties: the employer and the employee may jointly decide that the notice will not be worked and release each other from their obligations (Article 172.42).
- Employer's objection: an employer who objects to the notice being worked must pay the employee a sum equivalent to the notice (Article 172.41).
- Serious misconduct by either party during the notice period: the contract ends immediately (Article 172.43).
Resignation without notice provided for by the Code
- Pregnant employee or new mother: during pregnancy and until the end of the ninth month after the birth, the employee may terminate her contract without notice (Article 153.6).
- Temporary lay-off (technical unemployment) or economic lay-off: the employee may leave the company without notice, provided they inform the employer in writing beforehand (Article 155.7).
What if the employee does not work their notice?
An employee who does not comply with their notice owes the employer an indemnity equal to the pay they would have received until the end of the notice period. This indemnity may be higher if, by refusing to work the notice, the employee intended to harm the employer and actually caused it damage separate from the mere lack of notice (Article 172.40).
Sums due to the employee
Resignation does not give entitlement to any termination indemnity. At the end of the contract, the employer pays:
- pay up to the last day of the contract;
- the indemnity in lieu of paid leave for days accrued and not taken (Article 222.16);
- bonuses and benefits accrued under the contract;
- where applicable, the sum equivalent to the notice if the employer objected to it being worked.
End-of-contract documents
The employer gives the employee a certificate of employment limited to the start and end dates and the posts held, with no unfavourable assessment (Article 172.32).
If the employer has the employee sign a receipt in full and final settlement, the employee may challenge it by a reasoned written notice within three months. This time limit can only be relied on against the employee if the receipt states it in very conspicuous characters and the words “in full and final settlement” are handwritten by the employee (Article 172.33).
When a resignation becomes a dismissal
Termination at the employee's initiative is treated as a dismissal, and subject to its substantive rules, where the employee decided to leave at the employer's request or as a result of the employer's fault (Article 172.3). An employee pushed into resigning may refer the matter to the labour inspectorate or the competent court (Article 172.38).
A resignation obtained under pressure therefore exposes the employer to the consequences of a dismissal: with no grounds and no procedure, up to 3 months' pay for irregular procedure and at least 6 months for unjustified dismissal. See our explainer Dismissal on personal grounds.
GHR best practice
- Require a written, dated resignation, and acknowledge receipt of it.
- Never suggest or draft the resignation letter on the employee's behalf.
- Calculate the end date of the notice period according to the employee's category.
- Put any agreement not to work the notice in writing.
- Check whether the employee is pregnant or gave birth less than nine months ago, or whether the employee is on temporary lay-off: notice does not apply.
- Prepare the final settlement and the certificate of employment for the last day.
