Break of Probationary Period: When Paid Notice Does Not Turn the End into Unfair Dismissal

Imagine the scene: in Antibes, a young salesperson hired by a start-up in Sophia-Antipolis is told that his probationary period is ending after only three weeks. The employer informs him that he is dispensed from serving his notice period (the time before the termination) but that this 'notice' will be paid. The employee, believing that this termination actually masks a dismissal without genuine and serious cause, takes the matter to the employment tribunal. But what does the law say? The probationary period allows each party to terminate freely, subject to respecting a notice period. The question that arises is: if the employer pays this period without requiring it to be worked, does the termination become unfair?

This decision of the Court of Cassation of 16 September 2015 provides a clear answer: no, provided the employee has received the compensatory payment for the notice period corresponding to the notice period, the termination cannot be reclassified as dismissal without genuine and serious cause. In other words, an employer who ends the probationary period and dispenses the employee from serving the notice period, while paying it, does not have to justify a genuine and serious cause. This decision is a victory for legal certainty for employers, but it also reminds employees that the probationary period remains a precarious phase.

For landlord owners, tenants and property professionals I see in my practice in Grasse or Mont-de-Marsan, this type of dispute may seem distant. Yet the rigour of the legal reasoning is transferable to many areas: when a law provides for a right to terminate without cause, compliance with formalities (such as payment of compensation) suffices to exclude any reclassification. Let's delve into the details of this judgment to understand how it applies in practice.

The Facts: A Story Like Many Others

Mr X, an employee hired as a salesperson by a company based in Sophia-Antipolis, has his three-month probationary period terminated after one month. On 13 October, the employer notifies him by letter that he is ending the probationary period and dispenses him from serving his notice period (which is one week per full month of presence in the company, i.e. one week). The employer states that the 'notice' of one week will be paid in the final settlement. Mr X is therefore paid for a week without working, then his contract ends.

Mr X contests this termination. He takes the matter to the employment tribunal, then the court of appeal, arguing that his employer had no genuine and serious reason to terminate, and that the termination should be reclassified as dismissal without genuine and serious cause. He claims damages for unfair dismissal, as well as compensation for notice (even though he has already received the payment for the notice period). The court of appeal finds in his favour and orders the employer to pay €10,000 in damages and €2,000 as compensation for notice.

The employer appeals to the Court of Cassation. He argues that the probationary period allows free termination, without cause, and that payment of the notice period dispenses the employee from serving it, but does not transform the termination into dismissal. The Court of Cassation sets aside the appeal judgment: it considers that the court of appeal violated Article L. 1221-25 of the Labour Code, which governs termination of the probationary period. In short, as soon as the employer has respected the notice period by paying it, the termination is lawful and cannot be reclassified. The lower court judges had erred in requiring a genuine and serious cause.

The Court's Reasoning — Analysed

The Court of Cassation relies on Article L. 1221-25 of the Labour Code. This provision states that 'When the employer ends the probationary period, he must respect a notice period' and that 'Failure to comply with this period entitles the employee to compensatory compensation'. But what happens if the employer dispenses the employee from serving this period while paying it? The Court answers: this does not change the nature of the termination, which remains a simple end of probationary period, not subject to the requirement of a genuine and serious cause.

The reasoning is as follows: the probationary period is, by its nature, a 'test' period where each party can terminate freely, without having to justify a reason. The only imperative is to respect a notice period, which allows the employee to look for another job or the employer to find a replacement. If the employer pays this period without requiring it to be worked, he fulfils his legal obligation. The termination is therefore not unfair. The court of appeal had made the error of considering that payment of the notice implied that the employer admitted fault or lack of cause, which is not the case.

What few people know is that this solution is consistent in case law: the employer can end the probationary period without cause, even by dispensing the employee from serving the notice period, provided he pays it. The judgment of 16 September 2015 is not a reversal, but a confirmation. It reminds that the judge must not add conditions that the law has not provided. In other words, the freedom to terminate the probationary period is real, and payment of the notice period is a mere formality, not an admission of liability.

undefined, I have encountered cases where employees tried to have an end of probationary period reclassified as unfair dismissal, hoping for higher compensation. This decision closes that door, unless the employer has not respected the notice period or has not paid it. The lesson is clear: for employers, it is enough to follow the procedure (notice and payment) to be compliant. For employees, the probationary period remains a time of legal vulnerability.

What This Changes for You — Practically

If you are an employer, this decision secures your practices. You can end the probationary period without having to justify a reason, even if you dispense the employee from serving the notice period. However, be careful: the notice period must be respected (in days or weeks depending on length of service) and the corresponding compensation must be paid. For example, for an employee present for one month, the notice period is one week; if you dispense him, you must pay him for that week. If you fail to pay, the termination becomes irregular and the employee can claim damages.

If you are an employee, know that the probationary period is a period of precariousness. The employer can end it without cause, even by paying you a 'notice' not worked. You cannot challenge the termination as unfair dismissal, unless the employer did not respect the notice period or did not pay it. Concrete example: in Sophia-Antipolis, an engineer hired on a permanent contract with a 4-month probationary period has his contract terminated after 2 months. The employer dispenses him from the 2 weeks' notice period and pays him. The engineer cannot sue for dismissal without genuine and serious cause. However, if the employer had not paid him the compensation, he could claim that sum and possibly damages for irregularity.

For property professionals, this decision illustrates a general principle: compliance with legal formalities protects against reclassification. Whether for a residential lease or a sale, procedural rigour is often the key to avoiding litigation.

Four Tips to Avoid This Type of Dispute

• Scrupulously respect the notice period: Whatever your decision, calculate the legal period (e.g., 1 week for less than 1 month of service, 2 weeks between 1 and 3 months, etc.). Notify it in writing and keep proof of receipt.
• Pay the compensatory indemnity if you dispense the employee: If you decide not to have the notice period worked, pay the corresponding indemnity in the final settlement. Do not call it 'notice' to avoid confusion, but mention 'compensatory indemnity for notice period'.
• Avoid any discriminatory or vexatious reason: Even if termination is free, you cannot end the probationary period for a discriminatory reason (origin, sex, pregnancy) or because of the exercise of a right (such as legal action). Such reasons could lead to damages.
• Document the termination: Write a letter of termination of probationary period mentioning the end date and payment of the notice period. Keep a copy. This will facilitate your defence in case of a challenge.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line: the Court of Cassation has already held that termination of the probationary period is not subject to the requirement of a genuine and serious cause, even if the employer pays the notice period (Cass. soc., 12 March 2014, No. 12-27.826). However, if the employer does not respect the notice period and does not pay it, the termination is irregular and entitles the employee to damages (Cass. soc., 8 July 2009, No. 08-41.559).

The trend of the courts is to protect the employer's freedom during the probationary period, while sanctioning manifest abuses (discrimination, harassment). For the future, it is unlikely that case law will evolve towards systematic reclassification, because the probationary period is designed as a period of reciprocal evaluation. Employees should therefore be aware that this phase is risky and negotiate, if possible, a shorter probationary period or contractual guarantees.

Key Points to Remember

FAQ:

• Can the employer end the probationary period without cause? Yes, that is the principle of the probationary period. No reason is required.
• What happens if the employer does not pay the notice period? The employee can claim the compensatory indemnity and possibly damages for irregularity. But the termination is not reclassified as unfair dismissal.
• Can I challenge a termination of probationary period if I think it is discriminatory? Yes, but you must provide evidence. Discriminatory reasons are prohibited, even during the probationary period.
• What is the time limit to act? The employee has 12 months from the termination to take the matter to the employment tribunal.
• Does this decision apply to all contracts? Yes, for permanent and fixed-term contracts, subject to more favourable collective agreement provisions.

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