Unworked Notice Period: Employer Can Claim Compensation

Imagine: you are a small shopkeeper in Capbreton, you hire a sales assistant for the season, and after a few months, you have to dismiss them. You give them notice (the period between the announcement of dismissal and the actual end of the contract) of one month, as provided in the contract. But the employee does not turn up, without you having dispensed them. What happens? Do you have to pay them anyway? The answer from the Court of Cassation is clear: no, but you can claim a compensating indemnity (a sum of money to compensate for the loss).

This decision of 18 June 2008 (No. 07-42.161) is of interest to all employers, but also to employees and even landlords and tenants, because the principle of notice is the same in residential leases. In short, it reminds us that the obligation to respect the notice period applies to both parties. If one does not perform it without being dispensed, they owe an indemnity.

But what does this actually change in your daily life in Dax or elsewhere? We explain it all simply.

The Facts: A Story That Happens Every Day

Mrs X worked for a company in Dax. Her employment contract provided for a reciprocal one-month notice period in the event of termination. On 14 December 2005, she was dismissed. The employer gave her one month's notice, but the employee did not work it. She stopped coming to work. The employer did not pay her during this period. Later, the employee claimed payment for her notice period. The employer refused and even claimed a compensating indemnity (a sum of money to compensate for the loss suffered due to the non-performance).

The case came before the employment tribunal (the court that hears disputes between employers and employees). Surprisingly, the judges dismissed the employer's claim, considering that the employee had not taken the initiative to terminate the contract and that she had not been paid during the notice period, so she owed nothing. The employer appealed to the Court of Cassation (an appeal to the Court of Cassation to overturn a decision contrary to law).

The Court of Cassation quashed (annulled) the judgment: it recalled that the obligation to respect the notice period applies to both parties. If the employee does not work their notice period without being dispensed (dispensation granted by the employer), they owe a compensating indemnity. In other words, the employer can claim this sum.

The Court's Reasoning — Explained

The Court of Cassation relied on Article L. 122-8, paragraph 1, of the Labour Code, now Article L. 1234-5. This provision states that an employee who does not work their notice period (unless dispensed) owes the employer a compensating indemnity. In short, it is a legal obligation: the notice period must be worked or paid.

The lower court judges (employment tribunal) had considered that, since the employee had not taken the initiative to terminate the contract (it was the employer who dismissed), she did not owe any indemnity. But the Court of Cassation corrected this: it does not matter who took the initiative; it is the non-performance of the notice period that counts. If the employee does not work during the notice period, without being dispensed, they owe an indemnity. However, if the employer dispenses the employee from working the notice period, they must still pay them (this is called paid notice).

What few people know is that this reasoning also applies to other contracts, such as residential leases. A tenant who gives notice and leaves the property before the end of the notice period without the landlord's agreement owes rent until the end of the notice period (or until re-letting).

This decision confirms a consistent line of case law: notice is a reciprocal obligation. It does not create a change in direction, but it usefully reminds us of the principle.

What This Means for You — Practically

For employers: if an employee stops coming to work during their notice period, you can withhold the corresponding salary and even claim a compensating indemnity (an amount equivalent to the salary they would have received). Example in Dax: a sales assistant on the minimum wage (around €1,400 gross per month) who does not work their one-month notice period, you can claim €1,400. But be careful: if you dispense them, you must pay them.

For employees: if you are dismissed, you must work your notice period or request a dispensation in writing. If you do nothing, the employer can claim an indemnity from you. Conversely, if the employer dispenses you, you are entitled to payment for your notice period.

For landlords: a tenant who gives notice and leaves before the end of the notice period owes you rent until the end of the notice period (or until re-letting). Example in Capbreton: rent €800/month, notice period of 3 months, the tenant leaves after one month without agreement: they owe you 2 months' rent (€1,600).

undefined, I have come across cases where a landlord in Mont-de-Marsan let their tenant leave without notice, believing they could not claim anything. The case law gives them the right: they can claim the rent.

Four Tips to Avoid This Type of Dispute

• For employers: formalise the dispensation from notice in writing. If you dispense an employee from working their notice, sign a letter of dispensation stating that the salary will be paid. Otherwise, the employee might claim they were not dispensed and demand payment.
• For employees: request a written dispensation if you want to leave earlier. Before stopping work, have a document signed by your employer dispensing you from your notice period. This way, you are sure not to owe any indemnity.
• For landlords: have an inventory of fixtures and a written notice signed. In the event of early departure by the tenant, ask them for a written acknowledgment that they are leaving before the end of the notice period. Keep evidence to claim the rent.
• For tenants: respect your notice period or negotiate. If you need to leave before the end, get the landlord's agreement in writing. Otherwise, you risk having to pay rent until the term.

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Further Reading: Related Case Law and Developments

This decision is part of a consistent line. For example, the Court of Cassation ruled on 22 February 2006 (No. 04-45.360) that an employee who does not work their notice period owes an indemnity, even if the dismissal is without genuine and serious cause. Another judgment of 14 November 2007 (No. 06-43.187): the employer can withhold salary during an unworked notice period.

The trend is clear: the courts are strict on the performance of notice periods. No change in direction on the horizon. This means you must be very vigilant: simply abandoning your post during the notice period can be costly.

In Practice: What to Do

Here is a checklist "What to do if an employee/tenant does not work their notice period":

1. Check the contract: length of notice, any dispensation clause.
2. Notify the non-performance in writing (registered letter with acknowledgement of receipt) reminding them of the obligation.
3. Serve a formal notice (formal demand) to perform or pay.
4. Calculate the indemnity: gross salary for work, rent for housing.
5. Take the matter to court (employment tribunal or local court) if no payment.

If in doubt, consult a lawyer lawyer.

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