Fixed-term contracts in France: A focus on 2022 judgements

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6 October 2022

In France, when you hire employees on a fixed-term contract, strict rules apply. And like every year, 2022 brings its share of new regulations for companies. What are the rules regulating the renewal of a fixed-term contract? What are the latest clarifications from the French Supreme Court (Court de cassation)?

What is the fixed-contract’s termination date in the event of gross misconduct by the employer?

The employee may bring a case before the Labor Council [Conseil de prud’homme] for judicial termination of his or her fixed-term contract and for compensation for damages. If the employee manages to prove the employer’s wrongdoing, the contract will be terminated at the fault of the employer.

The French Supreme Court recently clarified the date on which this termination takes effect:

Either on the date of the judgment, when the contract is still in progress,
Or on the contract termination date, if it has already ended (Social Cassation, 22 June 2022 no. 20-21.411)

If the judicial termination is not pronounced, the employee will continue to work under normal conditions.

Many successive fixed-term contracts do not necessarily refer to a structural need for workers

To have their fixed-term contracts requalified, employees often point out their number of contracts and duration.

Example
An employee signed 37 fixed-term contracts over a four-and-a-half-year period, mostly to replace absent employees. She brought a case before the Labor Council to have of her fixed-term contracts requalified as one permanent contract, arguing that the use of such a succession of contracts was in response to a structural need for workers.

The Court of Appeal and the French Supreme Court had to combine two rules that could come into conflict:

An employer may not use successive fixed-term contracts to replace absent employees to meet a structural need for workers.
Permanent employees are entitled to paid leave, sick leave and/or maternity leave, which creates many justified absences to be covered.

After noting that these were “distinct” and “independent” fixed-term contracts and that the absences were justified by “paid leave, maternity leave, and sick leave,” these absences dismissed the case for a structural need for workers.

Thus, it is the permanent employees’ right – in this instance, to vacation and sick leave – that encourages courts to be more flexible in assessing the legality of successive replacement fixed-term contracts. (Social Cassation 13 April 2022 no. 21-12.538)

Fixed-term contract, lack of signature and requalification risk

Be careful, a lack of employer signature is just as risky as no employee signature.

A fixed-term contract that has not been signed by one of the parties, whether by employer or by the employee, must be requalified as a permanent contract.

In practice, an employee – who has signed his or her contract – can bring a case for requalification against his or her employer solely on the grounds that the latter failed to sign the contract. (Social Cassation 2 March 2022 no. 20-17.545)

The action for requalifying a fixed-term contract as a permanent contract expires after two years

The period of limitation for a case to requalify a fixed-term contract into a permanent contract is two years and starts at:

The end of the contract or,
In the case of successive fixed-term contracts, the end of the last contract (L 1471-1).

When the request for requalification is recognized as being well-founded, the employee is entitled to claim seniority dating back to the first irregular contract. (Versailles Court of Appeal 22 September 2022 no. 19/03534)

Example :

1st fixed-term contract is dated September 20, 2018
1st irregular fixed-term contract is dated September 10, 2019
The last fixed-term contract executed is dated December 20, 2020

Social law is a living law that is constantly changing. This is why Primexis, in collaboration with the law firm Dupard & Guillemin, provides you with regular support and answers your questions from the viewpoint of Payroll and Labor Law.