Recent events in France have provided us with an example of a ministerial resignation (Interior Minister Gérard Collomb) that was initially rejected by the President of the Republic, then reiterated and eventually accepted. Even if the acceptance of Collomb’s resignation seems in these particular circumstances to reflect a republican tradition and a mark of respect for the President, could such a situation arise in an employment relationship context?
The answer here depends on the nature of the employment contract, and whether it is concluded for a fixed or indefinite term.
The impossibility of ‘resignation’ for employees on fixed-term contracts
Resignation (i.e. unilateral termination by the employee) in the strict sense of the term does not exist for employees on fixed-term contracts (CDD, contrat de durée déterminée). What the parties have agreed for a limited period of time must be carried out until the agreed end date. The only exceptions to this principle relate to two situations defined by law that allow the employee to end an employment contract unilaterally before the end of the fixed term:
- Engineers or executives on fixed-term contracts (Article L. 1242-26) can terminate ‘for a real and serious reason’ 18 months after the contract is concluded and on the contract anniversary date. This does not represent total freedom, since it requires the employee wishing to terminate to demonstrate a real and serious reason for terminating.
- All employees can terminate unilaterally if they are hired on a permanent contract: this gives them the right to terminate a CDD contract before its term is completed.
With the exception of these two scenarios, a ‘resigning’ employee on a fixed-term contract may incur liability towards the employer, who can claim damages, provided that it can prove both that the unlawful termination has caused real loss or damage, and the extent of that loss or damage.
The freedom to resign for employees on a permanent contract
For permanent contracts, the situation is reversed, because an employee on a permanent contract can resign at any moment in the employment relationship. The decision to resign is not subject to prior acceptance by the employer, regardless of the importance of the role of the resigning employee for the company.
This freedom to resign at will also applies when the employee has committed to staying in the company for a certain period of time (for example, in the context of a training commitment clause). These commitments do not constitute restrictions on an employee’s freedom to resign: they only deal with the potential financial consequences of resignation. Thus, in the case of a training commitment clause, an employee agrees to financially indemnify their employer if they resign prematurely to compensate for the heavy commitment previously taken on by the employer in funding that employee’s training. The employee can therefore still resign when he or she wishes, but will be responsible for compensating the employer (according to what was previously agreed between the parties) for the proportion of the training costs they could not recoup because the period of employment was shorter than anticipated.