The legal background

Under French employment law, part-time work is subject to specific rules the purpose of which is to ensure that employees benefit from a minimum level of stability and predictability in their working time schedule. More specifically, the relevant legal provisions state that the additional working hours that an employer can require an employee to perform may not exceed 1/10th of the working time stipulated in the employment contract and that they cannot, in any case, result in the employee working the equivalent of a full-time employee. The relevant case law has construed such provisions so that the sole fact that an employee has been performing additional hours in breach of the limit representing 1/10th of his/her working time does not necessarily entail the reclassification of the employment contract as a full-time contract.

However, what happens if an employee’s working time is increased to the point that he/she performs the equivalent of a full-time employee? Is the fact that such increase in (part-time) working hours only occurred during a very short period of time relevant?

The facts issue

In a decision of the Supreme Court of 17th December 2014, an employee who was hired on a part-time basis had, in the course of her employment, worked full-time during a period of one month. Following her dismissal for economic reasons, she filed various claims before the employment tribunal, in particular alleging that her employment contract should be requalified as a full-time employment contract.

The ruling and its meaning

The Court of Appeal dismissed the employee’s claims relating to part-time work on the basis that there was no reason to consider that her employment contract was in fact a full-time employment contract even though she had worked on a full-time basis during one month. The Supreme Court reversed the ruling of the Court of Appeal and held that the sole fact that the employee had been working full-time during one month meant that her employment contract should be considered as a full-time employment contract as from the date on which she began working on a full-time basis.

This decision is in line with established case law under which a part-time employee can no longer be considered as one if he/she is in fact performing work on a full-time basis. This ruling also reiterates previous case law in which a part-time employment contract had been requalified as a full-time employment contract even though the employee had only worked full-time during one month in the course of an eight-year period of employment. As a result, and as soon as a part-time employee has actually worked full-time, the remainder of the employment relationship, even if not worked on a full-time basis, will be requalified as full-time employment.

The consequences of such requalification could prove to be quite severe for the company as the employee would then be entitled to claim significant amounts of back pay for the period between the date on which he/she began to work on a full-time basis and the end of his/her employment, subject only to the applicable statute of limitations. It should also be recalled that any employer in breach of the applicable limits concerning the performance of additional hours could face a fine of up to 1,500€ for an individual and 7,500€ for a legal entity as well as a claim for constructive dismissal on the part of the employee. In this context, it is thus of the utmost importance to make sure that a part-time employee never works on a full-time basis, even during a very brief period of time. This certainly does not leave much of room for maneuver to employers since they are now also required to comply with a minimum weekly working time of 24 hours (with certain exceptions) when dealing with a part-time employment contract.

 

 

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