Termination of employment relationship and release from the obligation to work
When the employment contract with an employee is terminated, the employer may, for various reasons, want to give up employing the employee. In this case, they can unilaterally release the employee from the obligation to work during the notice period. Concretely, what impact does this have on holidays, overtime, etc.? Our partner CJE, Avocats, Conseillers d’Entreprises reviews these different questions for you.
1. Droits et obligations
Firstly, it should be noted that with the exception of the obligation to work from which the employee is expressly released by the employer, all the rights and obligations of the employer and of the employee remain in place.
2. Durée de la libération de l’obligation de travailler
In certain situations, the employee may benefit from protection against dismissal, which postpones the date of the end of the employment relationship. This can extend the employment contract by several months. The employer faced with such a situation will have to consider whether or not they intend to release the employee for the entire duration of the notice period, in the event of the occurrence of a case having an impact on the notice period. The employer may reserve the right to revoke the release from the obligation to work in cases where the notice period is extended.
3. Salaire
The salary due by the employer must be paid on the usual dates and must be equivalent to that which the employee would normally have received if they had worked during the period of release from the obligation to work.
4. Indemnités «habituelles»
When the employee usually receives allowances (e.g. night work, Sundays and public holidays), the employer must continue to pay them, even if they have been released from the obligation to work.
5. Frais
The expenses to which the employee is entitled, such as meal allowances, for entertainment expenses, travel, cleaning of work clothes, etc. must no longer be paid insofar as they cover costs directly linked to the performance of the work and are saved on days not worked.
6. Véhicule d’entreprise
When the employee benefits from a company car for professional use only, they are no longer entitled to it as soon as they have been released from the obligation to work.
On the other hand, when the employee can make private use of the company vehicle, they have the right to keep it until the end of the working relationship.
7. Matériel mis à disposition du·de la collaborateur·rice
The employer will inform the employee of the date on which the equipment made available to them (telephone, laptop, etc.) must be returned. When the employee is definitively released from the obligation to work, there is, a priori, no reason to wait for the employment contract to actually end to ask them to return the equipment.
8. Vacances
The employer may consider that the employee’s holiday balance is deemed taken during the period of leave during which they have been released from the obligation to work, however a certain limit applies. It is generally considered that 1/3 of the duration of the holiday balance during which the employee is released from the obligation to work can be deemed taken. So, if the notice period is three months and the employee has a holiday balance of 21 days, it may be considered that the entire holiday balance is deemed to have been taken during the notice period. On the other hand, if the notice period is two months, 7 days holiday must be paid.
In a recent judgement, the Federal Supreme Court accepted, in view of the circumstances of the case, the taking of 35.67 days of holiday over a period of release from the obligation to work of 75.46 days (Judgement of the Federal Supreme Court 4A_381/2020 of 22 October 2020).
9. Heures supplémentaires
The case of overtime is different from that of holidays. Overtime can only be deemed compensated if this is formally stipulated in the employment contract; otherwise, it must be paid to the employee.
10. Nouvel emploi
All the rights and obligations of the employer and of the employee remaining in place, the latter cannot start a new activity without the express agreement of the employer, all the more so if by their new job, they could breach their duty of care and loyalty.
When the employee begins a new activity during the notice period while being released from the obligation to work, the employer is entitled to deduct what the employee earned with the new activity from the salary they owe the employee.
11. Incapacité de travail
When it is the employee who terminates the employment contract, any incapacity for work, illness, accident, pregnancy, etc. has no influence on the end date of the employment relationship, including in the event of release from the obligation to work during the notice period.
On the other hand, if it is the employer who has terminated the employment contract, the employee benefits from the usual protection in accordance with the effective duration of the incapacity, but limited to 30 days during the first year of activity, 90 days from the second to the fifth year of activity and 180 days from the sixth year of activity.
12. Congé maternité
When it is the employee who terminates the employment contract, a possible pregnancy or maternity leave has no influence on the date of the end of the employment relationship, including in the event of release from the obligation to work.
On the other hand, if it is the employer who has terminated the employment contract, the notice period for the employee released from the obligation to work is suspended for the entire duration of the pregnancy and for the following 16 weeks; the notice period will not start running again until the first day of the 17th week after giving birth.
13. Congé paternité
When it is the employee who terminates the employment contract, any paternity leave has no influence on the end date of the employment relationship, including in the event of release from the obligation to work. On the other hand, if it is the employer who has terminated the employment contract, the notice period of the employee released from the obligation to work is extended by the number of days of leave that have not been taken.
14. Congé de courte durée pour les proches aidants
The short-term leave for caregivers (maximum 3 days per case and 10 days per year) does not affect the end date of the employment relationship.
15. Congé pour prise en charge d’un enfant gravement atteint dans sa santé en raison d’une maladie ou d’un accident
When it is the employee who terminates the employment contract, leave to take care of a seriously ill child has no influence on the date of the end of the employment relationship, including in the event of release from the obligation to work.
An employee dismissed by the employer and released from the obligation to work is entitled to 14 weeks’ leave to care for a child whose health is seriously impaired due to illness or accident; they benefit from protection against dismissal for a period of six months from the day for which the first compensation was paid, which extends the duration of the employment contract by the same amount.
Remarque finale
- The employee can only benefit from protection against dismissal after the end of the trial period.
- When the employee benefits from a cause of protection against dismissal, Saturdays, Sundays and official bank holidays are included in the calculation.
- In order to avoid any misunderstanding that could generate a dispute, it is advisable to agree in writing on the rules that govern relations between the employer and the employee in the event of release from the obligation to work during the leave.
This content was written by our partnerCJE, Avocats, Conseillers d’Entreprises.
