The decision at stake, dated 15 May 2012, concerned an employee dismissed for economic reasons. At the expiry of his two months notice period, the employee continued to work for his employer for one extra month. Subsequently, the employee alleged that a second employment contract had been entered into and that the employer should have complied with another dismissal procedure at the end of the additional month.
According to prior rulings of the French courts, both parties can agree to extend the notice period for a limited period of time, without this being considered as the entry into of a new employment contract. In case of litigation however, the burden of proof to determine whether the parties did or did not agree to extend the notice period is borne by the employer.
In the decision at stake, the employer failed to prove there was such an agreement, and the court therefore assumed that a new employment contract had been entered into and that such contract should have been terminated in accordance with French very strict rules on dismissal.
In order to avoid such risks, it is highly recommended that employers wishing to extend an employee's notice period reach an agreement with the concerned employee and formalise it in writing, indicating very clearly...