An employee hired three weeks ago announces that he is leaving the company tomorrow. His manager discovers that a notice period applies, but does not know how to calculate it or when it starts. This situation, common during the probation period, leads to mistakes that can result in a compensatory indemnity. Here’s how to correctly set up the calculation, step by step.
Two calculation methods depending on the employee’s length of service
It is often forgotten, but the notice period is not calculated the same way depending on the employee’s seniority in the company. Short thresholds (less than 8 days of presence, then from 8 days to 1 month) are expressed in hours, from date to date. Long thresholds (beyond one month of presence) are counted in calendar days from date to date, including weekends and public holidays.
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Specifically, for an employee who has been present for 10 days, the notice period is 48 hours. We start from the exact time of notification (for example, a Tuesday at 2 PM) and add 48 hours: the termination takes effect Thursday at 2 PM. For an employee who has been present for two months, the notice period increases to two calendar weeks. If the notification falls on a Wednesday, July 9, the termination cannot occur before Wednesday, July 23.
To fully understand each example of calculating the notice period, we systematically distinguish the applicable threshold before starting the countdown.
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Notice period during the probation period: the thresholds to know
The legal durations differ depending on whether the termination comes from the employer or the employee. When it is the employer who terminates the probation period, the thresholds are as follows:
- Less than 8 days of presence in the company: 24 hours notice
- Between 8 days and 1 month of presence: 48 hours
- Between 1 month and 3 months of presence: 2 weeks
- Beyond 3 months of presence: 1 month
For the employee, it is simpler: 24 hours if the presence is less than 8 days, 48 hours beyond that. This imbalance is intended by the legislator to better protect the employee against a termination they undergo.
A point often overlooked: the notice period is only mandatory if the probation period lasts at least one week. For a fixed-term contract with a probation period of three days, no notice is required.
Calculating the notice period when the end of the probation period approaches
This is the practical case that poses the most problems. An employer wishes to terminate the probation period of an employee who has been present for two and a half months. The applicable notice period is two weeks. The probation period ends in 10 days.
The notice period can never extend the probation period beyond its initial term. The contract ends on the scheduled date of the end of the probation period, even if the notice is not fully “consumed”. The employer will then have to pay a compensatory indemnity corresponding to the missing notice days.
Let’s take the figures from our example. Two weeks of notice, but only 10 calendar days before the end of the probation period. The employee leaves the company at the end of the probation period. The employer pays him a compensatory indemnity equivalent to 4 days of salary (the unfulfilled notice days).
Anticipate rather than suffer the indemnity
In practice, it is recommended to notify the termination early enough so that the notice period ends before the end of the probation period. For an employee who has been present for more than 3 months (one month notice), notification must be made at least one month before the end of the probation period. After this point, each day of delay generates a day of compensatory indemnity.
Notification of the notice period: starting date of the calculation
The notice begins to run when the other party receives the information, not at the time of sending. For a registered letter with acknowledgment of receipt, it is the date of first presentation that counts. For a hand delivery against acknowledgment, it is the date recorded on the signed document.
A common trap: sending a registered letter on a Friday thinking that the notice starts the same day. If the postman arrives on Monday, the notice only starts from Monday. On thresholds of 24 or 48 hours, this shift changes the effective termination date.
- Hand delivery: the notice starts from the signing of the document by the employee
- Registered letter: the notice starts on the date of first presentation, even if the recipient does not collect the letter
- Email: responses vary on this point, but in the absence of clear legal framework, paper writing is preferred to secure proof
Compensatory indemnity in case of non-compliance with the notice
When the employer does not comply with the notice period, the employee is entitled to a compensatory indemnity equal to the gross salary corresponding to the duration of the unfulfilled notice. This indemnity includes the related paid leave. Non-compliance with the notice does not requalify the termination as a dismissal: the end of the probation period remains valid, but it comes at a cost.
For the employee, non-compliance with the notice period can theoretically entitle them to damages from the employer, but in practice, disputes on this point remain rare. The financial stakes are generally low (24 or 48 hours of salary).
The calculation of the notice period relies on three verifications: identifying the correct seniority threshold, choosing the right unit (hours or calendar days), and then checking that the notice does not extend beyond the end of the probation period. A late notification does not block the termination, but it turns the missing days into compensatory indemnity. It is better to establish the schedule right from the hiring to maintain control over the timing.