by Elise Vanhamme
It is well known that France’s labour laws offer unusually high levels of employee protection. However, the new labour market legislation (“La Loi sur le Marché du Travail”) may be a sign that things are changing. The changes apply to three areas in particular: the consequences of job abandonment, the options for fixed term employment contracts as absence cover, and the consequences of refusing a permanent employment contract after being hired under a fixed term contract.
Any planned absences must have been reported to and approved by the employer in advance. If an employee is ill (or absent unexpectedly for another reason), they must inform their employer as soon as possible, and submit a doctor’s certificate to the employer within 48 hours. Otherwise, the absence is considered to be unlawful. If an employee is absent without having notified the employer in advance or provided a doctor's certificate, their absence is considered to be job abandonment.
In France, until recently, unlawful absence was considered grounds of dismissal for gross misconduct (“licenciement pour faute grave”). Of course, the specified procedure always had to be followed, and would take a minimum of five weeks.
However, this is changing under the new labour market legislation: if an employee is absent without authorisation, the law now considers them to have resigned ("démission"). That doesn’t mean that an employee who does not appear at work can simply be considered no longer employed. As an employer, you still have a duty to give your employee notice and ask them to resume work or at least to provide a doctor’s certificate. However, the lengthy formal procedure for dismissal by the employer is no longer necessary.
The period that needs to elapse before you can give the employee notice that they no longer need to turn up for work will be defined by decree. The relevant decree has not yet been issued, which means that in practice, it is not currently possible to invoke the new laws.
French labour legislation includes fairly tight regulation of fixed term employment contracts. Firstly, there must be a valid reason for employing the person under a fixed term contract. The list of valid reasons is defined by law, and is limited in length. Secondly, there are strict specifications for the maximum duration and the number of times that the contract can be extended.
Furthermore, until recently, a fixed term employment contract to cover absence could only be used to replace a single employee. In other words, replacing several employees with a single temporary contract was not allowed by law. This is also changing (to a limited extent) under the new labour market legislation.
To be clear, we are not talking about a revolutionary change to French employment legislation: the option to replace several absent employees with a single temporary employee under a fixed term employment contract will only be available for certain sectors, initially for a trial period of two years.
The specific sectors to which the new law will apply have not yet been made public and will be established by decree.
Prior to the new legislation, if someone was hired under a fixed term contract, but refused their employer’s offer to turn this into a permanent contract, they would still be entitled to unemployment benefits, even though the unemployment was by their own choice.
And this is the third element that the Loi sur le Marché du Travail is changing. If someone repeatedly refuses an offer of permanent employment, they will forfeit their right to unemployment benefits. For this regulation to apply, the employment offer must meet certain conditions: the role being offered must be equivalent to the role that the person previously held, and the salary must also be comparable.
In this situation, you as the employer must inform the Pôle Emploi (the official French unemployment agency) of the job offer that you have made to the person, and the fact that they have refused it.
However, the details for this new legislation are also yet to be defined and will be published by decree. This means that although the law itself has been published, it is not yet possible to put this third regulation into practice.
Would you like further information about employment legislation in France? Or perhaps you’re looking for a partner who can offer you advice regarding employment legislation for hiring French employees? If so, please do get in touch with our experts!
In our opinions, we rely on current legislation, interpretations and legal doctrine. This does not prevent the administration from disputing them or from changing existing interpretations.
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