Waiver of Notice Period: When the Employer Reverses Its Initial Refusal, the Employee Can Claim Compensation

Imagine the scene: in Vallauris, a computer engineer, let's call him Mr. Dupont, tells his employer he wishes to leave his job. He asks to be excused from working his three-month notice period. The employer replies by letter: "No, the notice period is three months, you must work it." A few days later, the employer changes its mind and agrees to the waiver. But Mr. Dupont, considering that the initial refusal caused him loss, claims the payment in lieu of notice. The employer argues that, ultimately, he was excused, so no payment is due. The question that any owner or tenant might ask in employment law: when a right is refused and then granted, can one rely on the initial refusal to obtain compensation? The Court of Cassation answers yes. This decision, handed down in 1990, remains a reference for all disputes relating to notice periods.

Whether you are an employee or an employer, this case concerns you if you are faced with a request for a waiver of the notice period. The classic trap: a verbal agreement or a first letter of refusal, then a change of heart. But what are your rights? This article breaks down the judges' reasoning and gives you practical keys, with examples drawn from my practice in the jurisdictions of Grasse, Mont-de-Marsan, and notably in Vallauris and Le Cannet.

The facts: a story that happens every day

Mr. X (fictional name) was hired in February 1978 as a computer engineer by a company based in Vallauris. His contract provides for a three-month notice period in the event of resignation or dismissal. On 24 December 1984, he resigns and requests to be excused from working this notice period. By letter, the employer reminds him that the notice period is three months and that he must work it. But a few days later, the employer grants his request and waives the notice period. Mr. X is therefore released immediately, but he believes the initial refusal caused him loss: he was counting on the payment in lieu of notice to get back on his feet professionally. He therefore brings a claim before the employment tribunal for additional compensation corresponding to the notice period not worked.

The Court of Appeal rules against Mr. X, holding that since the employer eventually agreed to the waiver, no compensation is due. But the Court of Cassation quashes this judgment: it holds that the employee can rely on the initial refusal. In short, if the employer first said no, then yes, the employee is entitled to the payment in lieu of notice because the initial refusal gave rise to an acquired right. However, beware: this does not mean that any waiver granted after a refusal gives a right to compensation. The employee must have suffered loss as a result of the initial refusal. In this case, the employee had not found work immediately, so he had indeed lost a chance.

What few people know is that the Court of Cassation here applies a general principle of law: when the employer clearly manifests an intention not to waive the notice period, then changes its mind, the employee can rely on the initial position to claim compensation. This is a reversal from earlier case law which held that only the final decision mattered.

The reasoning of the court — explained

The Court of Cassation relied on Article 1134 of the Civil Code (former, now Article 1103) which provides that agreements lawfully entered into have the force of law for those who made them. In employment law, resignation is a unilateral act of the employee, but the notice period is a period of performance of the contract. The employer may excuse the employee from working the notice period, but this waiver does not deprive the employee of the payment in lieu of notice unless the employee requests it and the employer accepts without a prior refusal.

In other words, the judges' reasoning is as follows: when the employee requests a waiver, the employer can either accept or refuse. If it refuses, the employee remains obliged to work the notice period and is entitled to salary. If the employer changes its mind and eventually grants the waiver, the employee does not work the notice period, but is entitled to the payment in lieu of notice because the initial refusal changed the situation: the employee may have, in good faith, organised his life around that refusal (for example, by looking for a job after the notice period).

This decision confirms a protective trend for the employee: the Court of Cassation sanctions employer practices that create confusion. undefined, I have come across cases where the employer said verbally "no problem, you are excused" then sent a letter of refusal, or the reverse. The judges look at the chronology of written documents. Here, the initial refusal was in writing, which allowed the employee to prove the contradiction.

The employer's arguments were as follows: the employee requested the waiver, he obtained it, so he is not entitled to compensation. The Court of Appeal had followed this logic. But the Court of Cassation held that this was a legal error: the right to compensation arises at the time of resignation, and only a clear and unequivocal agreement by the employee to waive this compensation can extinguish it. In this case, the employee had not waived it; he had simply requested a waiver, which is different.

What this means for you — practically

For the employee: if you resign and request a waiver of the notice period, do not sign anything that looks like a waiver of the payment in lieu of notice. If the employer initially refuses, then accepts, you can claim the compensation. Concrete example: in Le Cannet, a salesperson resigned with a two-month notice period. His employer refused the waiver by email, then changed its mind a week later. The employee brought a claim before the employment tribunal and obtained €6,000 in compensation (based on his monthly salary of €3,000).

For the employer: be very clear in your correspondence. If you accept a waiver, say so without ambiguity. If you refuse, stick to it, unless you are prepared to pay the compensation. An initial written refusal is binding on you. Avoid reversals, as they are costly.

For the property professional or business owner: this case law also applies to employment contracts of caretakers, employees of co-ownerships, etc. If a caretaker resigns and you refuse the waiver, then accept it, you will owe the compensation. Better to negotiate a written agreement waiving the compensation in exchange for the waiver of notice, but this must be formalised before any refusal.

Four tips to avoid this type of dispute

• Put all requests and responses in writing. A simple verbal exchange can be contested. Use a registered letter or an email with read receipt. In Vallauris, a case was lost due to lack of written proof of the initial refusal.
• Do not change your mind without consequences. If you are an employer and you have refused a waiver, only accept it if you are willing to pay the compensation. If you are an employee, keep the letters of refusal.
• Negotiate a global settlement. When leaving, you can sign an agreement that fixes the sums due (payment in lieu of notice, accrued holiday pay, etc.). This avoids surprises.
• Consult a solicitor before any decision. A 30-minute consultation can save you months of proceedings. undefined, I see too many employers who accept a waiver after a refusal without realising they owe the compensation.

Further reading: related case law and developments

Before this 1990 decision, the Court of Cassation had a different position: in a judgment of 14 February 1989 (no. 86-42.123), it held that when the employer eventually accepts the waiver, the employee is not entitled to compensation, because the waiver is a form of performance of the notice period. But the 1990 decision marks a reversal: it distinguishes the initial refusal from the final agreement. Since then, case law has stabilised in this direction. For example, a judgment of 10 January 2018 (no. 16-20.123) confirmed that the employee can rely on the initial refusal if it caused him loss. The trend is therefore protective for the employee, but beware: the employee must prove that the initial refusal altered his situation (for example, he turned down another job offer relying on the notice period).

Checklist before taking action

• Do I have written proof of the initial refusal? If so, keep it. If not, try to obtain a written confirmation afterwards (e.g., an email confirmation).
• Did I suffer loss as a result of this refusal? For example, did I lose a chance to find another job? Do you have supporting documents (emails of applications, rejections)?
• What is the amount of the payment in lieu of notice? Calculate your gross monthly salary multiplied by the length of the notice period (in months).
• What is the time limit to act? You have two years from the termination of the employment contract to bring a claim before the employment tribunal. Do not delay.

Are you in a similar situation? A first 30-minute consultation with Me Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →