End of Contract: Information an Employee Must Provide
This article concludes the series of content written by our partner CJE, Avocats et Conseillers d’Entreprises, dedicated to the information obligations that punctuate the employment relationship. We have explored the communication obligations incumbent on both the employer and employees at the start of employment, during the employment relationship, and at its end. Find in this article the essential information to approach your departure with peace of mind.
After dedicating our previous article to the information an employer must provide to an employee at the end of the employment relationship, this time we focus on the other side of the relationship: what information must an employee transmit to their employer at the end of the contract? Among an employee’s obligations to the employer, the duty to inform holds a central place. It covers various situations: reporting an absence, giving timely notice of resignation, or communicating relevant facts for the smooth operation of the company. This article presents the main information obligations and their limits.
Until the End of the Contract: The Duty to Work and the Duty of Loyalty
Unless otherwise agreed, the employee must perform their work in person and do so diligently, faithfully safeguarding the legitimate interests of the employer.
This duty of loyalty includes a positive aspect: it obliges the employee to inform the employer of any event likely to hinder the smooth operation of the company, as well as imminent damages or irregularities observed. The Federal Tribunal recalled this in a case where a senior executive had failed to report the existence of a competing project of which he was aware.
This duty remains even when the employee is released from the obligation to work during the notice period.
Informing the Employer of the Decision to Terminate, While Respecting the Notice Period
An employee wishing to terminate the contract must communicate their decision to the employer and respect the applicable notice period. Unless otherwise agreed, this period is one month during the first year of service, two months from the second to the ninth year, and three months from the tenth year onwards. During the probationary period, the notice period is seven days.
An employee who abruptly leaves their position without respecting this period and without just cause is in a situation of job abandonment. The employer is then entitled to compensation equal to one-quarter of the monthly salary, as well as compensation for additional damages if they can prove them. This right must be exercised by the employer within thirty days, failing which it will lapse.
Promptly Informing of an Incapacity to Work
By virtue of their duty of loyalty, the employee must notify the employer as soon as possible in case of illness or accident preventing them from working. A medical certificate is generally submitted within the period stipulated by the contract or company regulations, often from the third day of absence. In the event of an accident, notice must be given without delay to allow for declaration to the insurer.
A failure or delay in notification, particularly for an employee in a position of responsibility, may constitute a serious breach of the duty of loyalty and, depending on the circumstances, justify immediate termination.
Informing Before Engaging in Another or Paid Activity
An employee may not engage in paid activity for a third party if it harms their duty of loyalty, particularly by competing with the employer. When such an activity is subject to notification by contract or company regulations, it must be reported to the employer before being undertaken. The Federal Tribunal confirmed the immediate dismissal of an employee who had engaged in undeclared secondary activity during an incapacity to work.
Accountability
The employee must account to the employer for everything they receive in the exercise of their activity, particularly sums of money, and hand it over immediately. Arising during the employment relationship, this obligation extends beyond its termination. It concerns, for example, commissions, retrocessions, or unused expense advances.
Summary Table
| Obligation | Legal basis | Time scope |
|---|---|---|
| Duty to work and to show loyalty (including the duty to inform) | Art. 321, 321a para. 1 CO | Until the effective end of the employment contract |
| Inform the employer of the decision to resign | Art. 335, 335c CO (notice period); Art. 337d CO (consequences) | Before or at the moment of resignation, in compliance with the notice period |
| Inform without delay of any incapacity to work | Art. 321a para. 1 CO; Art. 45 LAA for accidents | As soon as the impediment occurs |
| Inform before engaging in another activity, whether paid or unpaid | Art. 321a para. 3 CO | Before the start of the activity |
| Report anything received on behalf of the employer | Art. 321b para. 1 CO, extended by Art. 339a CO | During the contract, and after its end for anything received or produced during the employment relationship |
Practical Recommendations
The following measures do not automatically stem from the law. These are practical recommendations intended to secure communication at the end of the employment relationship.
- Organize accountability (expense reports, advances, commissions).
- Remind in writing of the notification procedures and deadlines in case of absence due to illness or accident.
- Request written confirmation of resignation, mentioning the date of the last day of work.
- Document information transmitted by the employee (irregularities, imminent damages, declared secondary activity).
- In case of abrupt departure, verify if the conditions for job abandonment are met before taking action.
The obligations of restitution, post-contractual discretion, and non-competition remain applicable. However, they fall outside the scope of this bulletin, which is dedicated to the duty to inform.