OD FLASH | Refusal to sign an extension of a fixed-term contract and bad faith on the part of the employee

Cass. Soc., 22 mai 2024, n°22-11.623

As a reminder, fixed-term contracts must be in writing and contain a precise definition of the reason for the contract. Otherwise, it is considered to have been concluded for an indefinite period.

In this case, a foreign student with a residence permit valid for more than three months was employed as a sales assistant on a fixed-term contract from 8 October 2016 to 8 February 2017, working six hours a week. The contract was renewed on 9 February 2017 until 4 June 2017 and several amendments were made to change the weekly working hours.

However, from 5 June 2017, the employment relationship continued without a contract being signed.

The employee was on sick leave from 27 June to 9 July 2017, and at the end of this period, the closure of the premises prevented him from returning to work. On 7 July 2017, the employee applied to the Labour Court for the judicial termination of his contract and the conversion of the part-time fixed-term contracts into full-time contracts of indefinite duration.

The Court of Appeal (CA Besançon 26 January 2021, no. 19/01044) rejected the employee’s request for requalification on the grounds that, on 5 June 2017, the employer had offered him a renewal of his fixed-term contract until 7 July 2017 and that it was clear that the employee had continued to work until the end of the contract while refusing to sign it on the grounds that he did not agree with its content.

The Court of Appeal added that while an employee may legitimately refuse to sign a contract, he may not use the refusal to sign to bring an action against the employer for requalification on the grounds that the contract was not in writing.

The Court of Cassation points out that the signing of a fixed-term employment contract is a requirement of public policy, the omission of which entails, at the employee’s request, requalification as an open-ended contract, and that this is only the case when the employee has deliberately refused to sign the employment contract in bad faith or with fraudulent intent.

The Court of Cassation therefore overturned the judgment on this point, holding that the Court of Appeal had ruled on grounds that did not constitute bad faith.

Caution should therefore be exercised when concluding/renewing a fixed-term contract based on the employee’s intention to sign.