You have just accepted a new job, when suddenly your dream job comes along. Do you have to start the first job? Can you accept offer number 2? Can you actually quit a job before you have started?

The employment contract

A validly concluded and signed employment contract is binding on both the employer and the employee. Legally, this means that the employee is obliged to make his or her working capacity available to the employer, while the employer, for its part, is obliged to pay wages for the work performed by the employee. If the employee or employer fails to fulfill these obligations, this usually constitutes a breach of the employment contract.

Main rule

The Supreme Court has ruled that, as a general rule, the provisions of the Working Environment Act do not apply until the employee takes up the position. In other words, this means that deadlines, rights, and obligations under the Working Environment Act will not apply to either the employer or the employee until the employee's first day of work. This principle applies regardless of whether the employee is hired as a temporary worker, in a permanent position, full-time, or part-time.

However, this does not mean that no rules apply before the employee takes up the position.

The Contract Act applies

Employment contracts are entered into in the same way as ordinary contracts and are governed by contract law. Before the employee takes up the position, the rules of contract law will therefore apply if an employment contract is not fulfilled as agreed by the parties.

A resignation by the employee prior to commencement of employment, i.e. a notice that they will not be making their labor capacity available to the employer, constitutes in reality a unilateral termination of the agreement. In such cases, contract law may entitle the employer to compensation from the employee for financial loss. However, claims for compensation require the employer to document that they have actually incurred a loss because the employee has not reported for work as agreed in the employment contract.

How can this best be solved in practice?

In most cases, the employee and employer will find a solution together. Under the Working Environment Act, the employee will in any case have the right to resign on their first day at work and will only be obliged to work out their notice period. In most cases, it will therefore be in the employer's best interest to accept the resignation before the employee starts work and instead contact other applicants who are motivated for the job. In all cases, the employee should notify the employer as early as possible to give the employer the opportunity to find a replacement. This reduces the risk of financial loss for the employer and potential liability for the employee.

Contact us

Do you need assistance in considering termination? Have you ended up in a labor dispute? Contact one of our experienced labor lawyers who will be able to guide you and assist you in the dialogue with your employer.