Terminating a probation period on economic grounds in France: what is the procedure?

Case N°1: Dismissing an employee that has already joined the company and during his/her probation period

If the employee has resigned from his/her former company, s/he can’t benefit from the unemployment compensation if the dismissal happens before 65 working days (about 3 months)

Exceptions to this rule: if the employee can justify a working period that totals 3 years of continuous affiliation to the unemployment insurance scheme (without interruption). In this case, even though the contract is terminated within 65 days, the employee can benefit from the unemployment indemnities. There are two possible situations for an employee that has resigned and whose contract is terminated by the employer within 65 working days:

• Either the employee demonstrates 3 years of continuous affiliation to the unemployment insurance plan, and will be able to benefit from it
• Or the employee can’t establish his 3 years affiliation (without interruption), and in this case, won’t be able to benefit from unemployment insurance.

Case N°2: Terminating the employee’s contract / the recruitment commitment before s/he joins the company

Currently, there are no legal provisions that specifically address the situation of an employee whose contract is terminated before s/he even takes up the position.

Two comments:

• For the company, terminating an employment contract before the employee starts working effectively in the company is regarded as a dismissal (layoff). Such a termination would involve at least the payment of a compensatory allowance and damages (one month maximum according to the Macron’s scale). Indeed, this kind of employment contract termination (i) is illegal in the absence of a redundancy procedure, and (ii) without actual and serious basis, in the absence of personal or economic grounds.
• Regarding Pôle Emploi, it seems like the situation wouldn’t automatically deprive the employee of his/her rights if the latter manages to demonstrate (i) on one hand, the existence of a valid employment contract, and (ii) on the other hand, the termination of the employment contract that is on the initiative of the employer

However, this can weaken the employee’s position as the latter would have to explain the termination of the contract without a letter of dismissal or probation period termination. The company should at least formally notifies the termination of the employment contract to the future-ex employee so that the latter can show the mail. The clearer the termination, the more the company is exposed to the risks mentioned.

That’s why when possible, the termination of a probation period is more appropriate and less risky for the company and the employee.

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