The law governing the employment rules and the relations between employers and employees is enshrined in the Labour Law Code (Code du travail) which has been recently amended in depth, and for further details in specific industries by the Conventions Collectives
The employment contract
No article in the Labour Law Code (LLC) gives an accurate definition of the notion of the contract of employment (contrat de travail). Therefore, authors have agreed to lay down three features that, if combined, may allow the judges to qualify a contract of employment. Those three features are the following :
- the employee must personally execute the work,
- the completing of the work must be compensated by a salary, indeed the contract of employment is always an onerous contract,
- there must be a relationship of subordination between the alleged employee and the alleged employer.
If those three features can be found, then a contract of employment is qualified
Terms and conditions of employment
Article L1221-1 of the Labour Law Code states that the contract of employment is subject to the rules of general French contract law. Thus it complies with the principle of the meeting of an acceptance and of an offer. Hence, in theory, the establishment of a written contract is not mandatory. A written contract is, however useful in order to prove the existence an specs of such a contract. However the existence of an employment contract can be evidenced by any means.
There is an exception for the Contrat à Durée Déterminée (time limited contract) which requires to be laid down in writing.
An employment contract may settle a probationary period during which any party may unilaterally terminate the contract (article L1231-1 of the Labour Law Code) without notice. To summarize this can be one month for employees and up to three months for executives, both likely to be renewed one time upon mutual agreement.
However, a court may rule that such period is too long and deem the contract definitively formed (the Spreme Court : Cour de Cassation in 1977 ruled that a period of six months was too long regarding the duties of the employee).
Moreover, though any party may unilaterally terminate during this period, judges may apply the theory of the “abus de droit”: abuse of rights. Thus, the social chamber of the Cour de Cassation has regularly deemed that any person using the probationary period in order to cover a momentary need of employee was abusing his rights to unilaterally break a contract of employment during such period and was in that picture likely to be held liable to compensate some damages.
The different types of employment contracts
The two main categories of employment contracts are :
The CDI “Contrat à Durée Indeterminée” (Unfixed Term Contract)
The CDI is the main category of contracts, and is deemed should the parties refrain from doing a written agreement.
The CDD “Contrat à Durée Déterminée” (Fixed Term Contract)
For a CDD the term of the contract is scheduled in writing for a time period or a replacement, or a determined duty. However such CDD may only be used in specific situations, described by the law. According to article 1241-1 of the Labour law code, a CDD may not have as an object or as an effect to supply to the need created by the normal and permanent activity of the company and, that it may only be signed for a temporary and precise duty.
The Labour law code provides that this contract must be completely in writing and must provide the clauses required to appear in the contract. A CDD is fitting for instance to replace a sick employee, and it is forbidden in the case of a dangerous task or during a strike.
The Labour law code provides that the employer that is about to terminate a contract of employment must prior to any termination, appoint the employee for a discussion during which he will give him the reasons for which he is considering to terminate the contract, and allow the employee to discuss the matters at stake.
Such an interview is mandatory . in some circumstance, the employees committees have to be consulted as well.
The employee may be assisted during this interview ,by a colleague of the company, or by a registered fellow member of a licensed Union.
A written notice of the termination must be made by registered mail, an is to be construed as the starting point of the notice period. A strictly verbal termination will not be deemed valid.
Moreover in this letter the employer must indicate precisely and comprehensively all the motives of the termination. . Furthermore article L1232-6 provides that it belongs to the judge to construe whether or not the cause of the termination may be qualified as being substantiated, the terminology uses the expression : real and serious “réelle et sérieuse”.
In that respect, doubt or unclear issues will always benefit the employee according to article L1235-1of the Labour code.
The special provisions ruling the termination of an employment contract under economic reasons are enshrined in the articles L. 1233-1 to L. 1233-4, L. 1233-25, L. 1236-1 and L 2323-14 Labour law code.
According to article L 3231-1of the Labour Law code the salary per hour must be at least equal to the SMIC (Minimum inter-professional salary of growth). Moreover, employees are untitled to a minimum remuneration per month (L3231-2), on a standard time basis.
The Cour de Cassation in a landmark case May 19, 1998 held that remuneration is an essential part of the contract of employment may not be amended without the consenting of both parties.
The Labour law code forbids, in it’s articleL1331-2, any financial disciplinary sanction.