Employees have the right to resign, which means that they can take the initiative to terminate their employment contract. Termination of an employment contract must stem from a serious and unequivocal desire on the part of the employee to do so.

Resignation with notice is a unilateral act governed by certain procedural rules and, when necessary, requires that advance notice be given.

Who is concerned

The following people may terminate their employment contract with a notice:

• employees with a permanent employment contract;
• employees on a trial period (according to the simplified regulations, a reduced notice period).

Employees on fixed-term employment contracts cannot resign, once the trial period agreed upon has been completed, except in case of serious misconduct by the employer.

The end of an apprenticeship contract is subject to legal provisions and specific terms and conditions unique to that type of contract.

Deadlines

Employees engaged under a permanent employment contract

Except in case of serious misconduct by the employer, any employee who decides to resign must notify the employer of the termination of their employment contract and allow for a certain notice period.

The notice period depends on the employee's length of service in the company.

The notice period is:

• one month if the employee has less than 5 years' continuous service with the employer;
• two months if they have between 5 and 10 years' continuous service;
• three months if they have at least 10 years' continuous service.

Employees engaged under a fixed-term employment contract

Employees with a fixed-term employment contract (CDD) may resign during the trial period provided for in the contract. 

After this period, the employee may terminate the employment contract only in the event of serious misconduct by the employer or by mutual agreement with the employer. In the latter case, mutual agreement must be established in writing, in the form of a statement prepared in two copies signed by both parties.

Aside from these scenarios, a fixed-term employment contract may not be terminated prior to its expiry date, failing which the party who has terminated the contract will be liable for payment of damages.

Employees on a trial period (permanent employment contract or fixed-term employment contract)

The employee cannot resign during the first 15 days of the trial period, except in the event of serious misconduct by the employer. Beyond that 15-day cutoff, the employment contract can be terminated at any time.

For employees on a trial period, the notice period is calculated with regard to the duration of the trial period. Trial periods not exceeding one month must be expressed in full weeks. Trial periods exceeding one month must be expressed in full months.

When the trial period is expressed:

• in weeks: the notice period comprises as many days as the trial period set by the contract has weeks (e.g. for a trial period lasting at least 3 weeks, the notice period would be 3 days);
• in months: the notice period is 4 days per month of the trial period, but must be no less than 15 days and must not exceed one month (e.g. for a trial period lasting 2 months, the notice period would be 15 days).

An employment contract may provide for a longer notice period for termination of the trial contract by the employer. However, an employment contract cannot provide for a resignation notice period longer than the period provided for in the Labour Code.

 

 

How to proceed

Form of termination of an employment contract

The intention to resign must be clearly and unequivocally expressed after careful thought. As a result, case law generally does not recognise oral resignations. Similarly, forced resignations are not considered to be termination of the employment contract at the employee's initiative.

To give notice of resignation to an employer, an employee can choose between:

• sending a resignation letter by registered post;
• delivering a resignation letter in person to the employer, who must sign a copy of the letter to acknowledge receipt.

The employee must specify in the letter of resignation that they are giving notice of resignation.

Terms of resignation

Contrary to a dismissal, for which an employer is required to provide justification, no reasons need to be given for a resignation, and the employee is free to leave the company.

Once notice has been given, a resignation is irrevocable unless the employer allows it to be withdrawn.

Starting point of notice period

In the case of a permanent employment contract

The notice period commences:

• on the 15^th of the month if the resignation is sent before the 15^th of the month (as per postmark);
• on the 1^st of the following month if the letter is sent on or after the 15^th of the month (as per postmark).

During the trial period

In case of termination of the trial contract, the notice period begins on the day after the notification of the termination of the trial contract.

However, one rule must be taken into account: The notice period must begin during the trial period and end no later on than the final day of the trial. Otherwise, the employment contract is reclassified as a permanent employment contract.

Example: if the trial period runs to 31 March, the 24-day notice period must end, at the latest, on 31 March.

Resignation by a pregnant woman

An employee who decides to raise her child after her maternity leave does not have to return to work, and there is no need to comply with a notice period.

Rights and obligations during the notice period

Until the end of the notice period, the employment contract remains in full effect so that the rights and obligations of both the employee and the employer are maintained.

Misconduct

Acts of misconduct by an employee or employer during the notice period are sanctioned in the same manner as acts committed prior to the notice of termination. Therefore, immediate termination of the employment contract for serious misconduct committed by one of the parties remains possible during the notice period.

Leave

During the notice period, an employee cannot be obliged to take the rest of their annual leave. They may take their remaining leave in agreement with their employer, but the employer cannot force them to do so.

An employer may, however, deny the employee the requested leave if staffing requirements dictate that they do so. Where applicable, leave due but not yet taken at the end of the notice period is paid to the employee at the end of the notice period in the form of a compensatory allowance for days of leave not taken. The same applies, where applicable, to prorated bonuses (13^th month / annual bonus).

Illness

Since a notice period is a fixed period, it cannot be extended if an employee falls ill. The notice period therefore stops on the date originally scheduled, even if the employee is ill throughout the entire notice period.

Indemnities

As a resignee, an employee is not entitled to severance pay (even if they have worked for more than 5 years for the same employer) or to unemployment benefits (since resignation is considered a voluntary loss of employment).

Penalties for failure to observe a notice period

An employee engaged under a permanent employment contract who decides to resign from their duties without observing the required notice period, and who cannot accuse their employer of serious misconduct, may be ordered to pay compensation to their employer, called "compensation in lieu of notice". This corresponds to the salary due for that part of the notice period during which the employee has not fulfilled their professional obligations.

In the light of recent case law, this penalty would also apply if an employee terminates a trial contract without observing the statutory notice period.

Exemption from work

There are two situations where this may occur:

1. if, in their letter of resignation, the employee asks to be released from work during the notice period, and the employer accepts the request, the contract can be terminated by mutual consent;
2. the employer grants an employee who wishes to resign an exemption from work. The employee is then released from their obligation to come to work, while continuing to receive their salary during the notice period. The employee may start working for a new employer: in this case, they will lose their entitlement to their salary, and the former employer will only be required to pay, until the end of the notice period, the difference between the former compensation and the new lower compensation. In principle, an exemption from work must be granted in writing, which allows the employee to have proof of the exemption and not be accused of an unjustified absence. However, in the event of a dispute, if the exemption from work has only been granted orally by the employer, the employee has the option to prove by any means —including through the testimony of third parties—that there was an exemption from work during the notice period.
   As regards social security contributions, the former employer must cover:
   
   • the employer's share of the social security contributions on the difference in compensation;
   • for the remaining period of notice, the employer's share of the social security contributions on the salary paid by the new employer, up to the amount of the old salary. This provision is applicable until 31December 2015.

An exemption from work from work must not result in a reduction in the salary, compensation and other benefits to which the employee would have been entitled if they had performed their work.

Termination of the employment contract before actual employment

If an employment contract is signed and provides for an employment start date occurring after the date of signing of the contract, an employee who breaks the contract before starting to work may, if they cause injury to the employer, be ordered to remedy the damage caused in application of the principle of 'good faith performance of contracts' (the parties to the contract have an obligation to execute it in good faith).

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