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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 the employee's express consent
to such extension.
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