As soon as the employment contract is signed, there is a definitive concurrence of will concerning the 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.
In the absence of serious grounds, an employment contract signed in due and proper form cannot be terminated before the start of the probationary period.
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.
Thus, Article L.121-5(4) of the Labour Code provides that unilateral termination of a probationary contract during a minimum period of 2 weeks is not possible, except for serious grounds. 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 however provide for any penalty, such as the award of compensation in lieu of notice, if the employer or the employee terminates the probationary contract or in a case of termination of the probationary contract before the end of the first two weeks, without observing the period of notice applicable in the case of termination of the probationary period.
Nota Bene
The case law accepts that the victim of termination of an employment contract signed in due and proper form before the beginning of the probationary period, and therefore before any commencement of performance, may claim redress.
Examples
An employee, after signing an employment contract, announces to his future employer that he is after all withdrawing from his recruitment contract.
It has been held in a legal decision that, whilst termination of the employment contract during a probationary period is a discretionary right (in so far as it allows the parties, subject to certain formal conditions, to terminate the probation without having to disclose the reasons for that decision), it is not an arbitrary right.
Thus, the employee or the employer may be liable to be ordered to pay damages where the termination took place in circumstances which disclose an intention to do harm or in circumstances appearing to evince a culpably frivolous attitude.
Examples
Termination 3 days before the planned commencement of the employment relationship.
Nota Bene
It is incumbent upon the aggrieved party to produce evidence of an intention to do harm or of a culpably frivolous attitude on the part of the other party in connection with termination of the employment contract before the commencement of the probationary period. It is also incumbent upon the aggrieved party to produce evidence of the harm suffered.
Examples
In a judgment, the Court has held that a culpably frivolous attitude is apparent on the part of an employee who, without serious grounds, repudiated an employment contract 3 days before the planned commencement of the employment relationship, in disregard of the legal formalities and in particular of the minimum probationary period of 2 weeks provided for in Article L.121-5 of the Labour Code.
The parties to an employment contract may include a clause governing the scenario of termination of the employment contract even before the first day of work.
Such a clause has been declared valid in the case law, provided that it does not give rise to a restriction of the employee’s rights, or an aggravation of his obligations.