Departure of the employee during the notice period: what effect on the repeal of the non-competition clause?
When the employer has not exempted the employee from carrying out his notice, he may repeal the non-competition clause during the execution of the notice. This is also the case even if the person stops working.
The employer may unilaterally repeal the application of a non-competition clause when this option is foreseen in the employment contract or the collective agreement (Cass, company 22-2-2006 n ° 04-45.406 FD 28-3-2007 No .: 06-40.293 FD). Otherwise, the employee’s agreement to the repeal of the clause is required. The employee is then released from his obligation of non-competition while the employer is not required to pay him compensation.
The handling of this option gives rise to extensive litigation, as illustrated by a recent judgment of the Court of Cassation (Cass. soc. 21-3-2018 No. 16-21.021).
Abandonment of post during the notice period.
In the present case, the employer could, under the employment contract, repeal the application of the non-competition clause by informing the employee in writing within a maximum of 30 days following the actual end of the work, defined such as the end of the notice period or the beginning of the notice not made.
In our case the employee had resigned and then left the company, having only partly fulfilled his 3-month notice period of which he had not yet been exempted. The employer had repealed the application of the non-competition clause before the end of the 3-month notice period but more than 30 days after the effective departure of the employee from the company.
The employee considered that the stipulations of his employment contract relating to the repeal of the non-competition clause should be interpreted strictly: the employer’s repeal was too late, which would have justified the payment of the compensation of non-competition.
The argument was rejected by the Court of Cassation: the employee has not been exempted from the execution of his notice period, the repeal of the clause during this period is therefore valid, even if the interested has ceased to execute his work. In other words, the date of the actual departure of the employee from the company did not matter because the employee had not obtained the employer’s agreement to stop work.
In fact: the employee cannot, on his own initiative, decide to stop executing his notice period. If he requests an exemption from the notice period, the employer is not obliged to grant it and may demand that the employee continue his work. Therefore the employer was entitled to consider that the employment contract was still in effect despite the employee’s abandonment of his position.
However if the employee had been exempted from staying in the company during the period delay the employer must release the application of the non-competition clause no later than the date of the actual departure of the employee. In this case the employee must be informed of the release of the clause no later than the day of his departure from the company. After that date, the employer’s release being late, he is entitled to the payment of the financial compensation.
This article has been prepared for informational purposes only. It is not a substitute for legal advice addressed to particular circumstances. You should not take or refrain from taking any legal action based upon the information contained herein without first seeking professional, individualized counsel based upon your own circumstances. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
Information by ALARIS AVOCATS