The legal context
Under French employment law, employers are entitled to provide for a trial period in the employment contract during which they are allowed to terminate the contract without being required to follow a dismissal procedure or to justify the termination on real and serious grounds. Such trial period cannot exceed a certain duration, which depends on the employee’s classification.
However, if so provided in the applicable collective bargaining agreement and in the employee’s contract, the trial period can be renewed once for a certain duration, still depending on the employee’s classification. In addition, case law requires such renewal to be accepted by the employee before the expiration of the initial trial period and for such acceptance to be express and unequivocal.
In this context, is the employee’s signature on the letter extending the trial period enough to characterize his/her express acceptance to such renewal?
In a recent case law dated 8th July 2015, an employee was hired on 17th January 2011 under an indefinite term employment contract providing a 3 months’ renewable trial period. By letter dated 8th April 2011, such trial period was renewed for a further 3 months’ with an expiration date of 16th July 2011. The employee was terminated during the second term of the trial period and he subsequently initiated legal proceedings against his former employer challenging the termination of his trial period.
The Court of Appeal dismissed the employee’s claims on the basis that he had signed the letter of 8th April 2011 and that he had expressed an unequivocal agreement to such extension. However, the Supreme Court overturned the decision of the Court of Appeal and held that the mere signature by the employee on the letter hand-delivered to him by the employer with a view to renewing the trial period could not be interpreted as an agreement by the employee to a renewal of the trial period.
In so ruling, the Supreme Court confirmed a well-established line of cases according to which the mere fact that the employee has signed a document prepared by the employer informing him/her of the renewal of the trial period could not be viewed as evidencing the employee’s agreement to such renewal. The rationale of this case law is that the employee’s acceptance must be clear and unambiguous and that it cannot be inferred from the signing by the employee of the letter giving notice of such renewal that the employee has accepted the principle of such renewal: the mere fact of signature might indicate simply that the employee acknowledges receipt of the letter.
The employer must therefore remain vigilant in the formalization of the employee’s acceptance and must not be satisfied with the mere signature by the employee but should instead also require him/her at the very least to accompany his/her signature with the mention “read and approved”. Failure to do so will result in the risk that any termination occurring after the irregular renewal of the trial period could be held to be an unfair dismissal.