Termination of the employment contract before the commencement of professional activity is not regulated in the Labour Code.
However, as soon as the employment contract is signed, there is a definitive concurrence of will concerning an employment contract intended to take effect on the date agreed between the parties.
The employment contract having been formed, the parties are bound by the terms of the employment contract.
The contract may be terminated before the commencement of professional activity, provided however that the legal requirements are observed and, if necessary, notice is given.
Termination of a duly formed employment contract, before the inception of performance, may give rise to the right to damages.
Thus, a party who considers himself to be the victim of a unilateral termination of contract is entitled to request that he be compensated for the damage he has actually suffered.
In a judgment, the Court took the view that the employer's refusal to make a post available to the employee constitutes a breach of the contractually agreed obligation and it is accepted that the retraction of a unilateral promise by the employer after acceptance by the employee must, so far as penalties are concerned, be considered as a termination of an employment relationship and be assimilated to unfair dismissal.
Indeed, in the event of the signing of an employment contract that includes a probationary period, Article L. 121-5 of the Labour Code relating to the probationary period is applicable. The article then specifies the notice periods to be observed in the event of termination of the contract during the probationary period.
It should be noted that Article L.121-5 does not provide for the award of compensation in lieu of notice in the event that one of the parties terminates the probationary contract during the minimum period of two weeks, in the absence of serious grounds, or, after that minimum period, without respecting the notice periods.
A party who is the victim of a unilateral termination of a contract including a probationary period is entitled to request that he be compensated for the harm he has actually suffered. Indeed, in so far as termination of the employment contract during the probationary period is a discretionary right, termination, either during the probationary period or before the start of work, only gives rise to compensation if evidence is produced of an intention to harm or a culpably frivolous attitude on the part of its author.