OD FLASH | The duration of fixed-term contracts prior to a permanent contract forming part of the same employment relationship must be deducted from the duration of the trial period of the permanent contract

Court of Cassation, Civil Division, Social Division, 19 June 2024, 23-10.783, Published in the Bulletin

According to article L1243-11 of the French Labour Code, when the contractual employment relationship is continued by an open-ended contract following one or more fixed-term employment contracts, the duration of the contract or contracts is deducted from any trial period provided for in the open-ended employment contract.

In its ruling of 19 June 2024, the Court of Cassation clarified that a one-month interval between two contracts does not prevent them from forming part of the same contractual employment relationship and their duration from being deducted from the trial period of the permanent employment contract.

The company notified the employee of the termination of her trial period on 15 September 2017, with effect from 18 September 2017.

The employee brought her case before the Marseille labour tribunal, requesting that her fixed-term contract be reclassified as a permanent contract. The council upheld the employee’s claims and the employer appealed. The Aix-en-Provence Court of Appeal overturned the judgment and dismissed all the employee’s claims, on the grounds that the second and third fixed-term contracts were separated by a period of one month. The court held that this discontinuity prevented a chain of contracts from being established for all the fixed-term contracts entered into by the employee. In the Court’s view, only the fixed-term contract concluded for the period from¹ to 30 August 2017 and the open-ended contract concluded on 4 September 2017 formed a chain of contracts. As a result, the Court held that only the last fixed-term contract of employment from¹ to 30 August 2017 should be deducted from the trial period. According to the Court of Appeal, the employer was therefore right to terminate the employee’s probationary period, which had not expired on the date of the notice of termination, despite the deduction of the period corresponding to the last fixed-term employment contract concluded.

The employee appealed to the Court of Cassation against the appeal ruling, arguing that the brief interruption in July 2017, which occurred during the statutory period for taking the main leave, did not prevent the existence of a continuous employment relationship since the first fixed-term employment contract, and that all the employment contracts should be considered as a whole.

The Court of Cassation upheld the employee’s claims and overturned the Court of Appeal’s decision.

It held that the employee had ‘ worked as a nurse in various care departments without any functional discontinuity, which meant that the same employment relationship had continued with the employer since 18 May 2017 and that the duration of the three fixed-term employment contracts should therefore be deducted from the trial period ’.

It is not new for judges to state that the duration of all the successive fixed-term contracts previously concluded between the parties must be deducted from the trial period provided for in the new permanent employment contract (Cass. Soc., 9 October 2013, no. 12-21.113).

The Court now specifies that a one-month break between fixed-term contracts does not prevent the employment relationship from being deemed to be continuous. The employer is obliged to subtract the duration of all fixed-term contracts from the trial period of the permanent contract. However, the judges of the High Court emphasised that, for the interval between contracts to be irrelevant, the employment relationship must have taken place without any functional discontinuity. This was indeed the case in this instance, since the new job required of the employee only qualities and skills that were at least similar to those required by the duties previously performed during her fixed-term contracts.