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Notice of unfitness: Crucial details for employers

Are you faced with an employee who has been absent for a long period of time and are worried that he or she may be declared unfit for work? Or perhaps one of your employees has already been declared unfit for work by the company doctor? The issue of unfitness for work is a delicate one, and the key often lies in the opinion drawn up by the occupational physician.

Here are some key points to remember:

  1. Terms of the Notice of Incapacity

Particular care needs to be taken when implementing the unfitness procedure, and in particular when drafting the opinion issued by the occupational physician.

Depending on the terms used by the doctor, you may or may not be exempted from your obligation to find a new job.

Legal provisions stipulate that an employee may be dismissed for unfitness in the following cases:

  • The employer is unable to offer the employee a job that meets the criteria set out in the French Labor Code ;
  • The employee refused to be reclassified in such a job;
  • The occupational physician’s opinion of unfitness expressly stated that “keeping the employee in a job would be seriously detrimental to his or her health, or that the employee’s state of health makes it impossible to reclassify him or her in a job”.

If the occupational physician indicates exactly these last points in the notice of unfitness, then the Cour de cassation considers that the employer is exempted from the obligation to look for an alternative position for the employee declared unfit. Instead, he can immediately initiate the procedure for dismissing the employee for unfitness.

In a ruling handed down last September, the French Supreme Court firmly reiterated that if the terms of this notice do not exactly reflect the terms of the legal provisions, the employer cannot validly consider himself exempt from this reclassification obligation.

In this situation, the doctor had indicated that ” any continuation of the employee’s employment with this company would be seriously detrimental to his health “.

As the doctor had not exactly reproduced the legal provisions, the employer was not relieved of his obligation to reclassify the employee, and should therefore have looked for a position to reclassify him.

The dismissal is therefore without real and serious cause and the employee must receive the compensation due for such a dismissal.

  1. Reclassification: An Imperative with Exceptions

⚠ Caution: The employer’s obligation to find a new job is a public policy obligation, which can only be derogated from by strictly applying the cases defined by law.

Employees declared unfit for work can only be dismissed as a last resort.

  1. A reminder about Abusive Refusal
  • Important: The Cour de cassation has issued another important ruling on incapacity, which should also be borne in mind.

An employee who has been declared unfit for work as a result of an industrial accident or occupational disease loses his or her specific benefits if he or she refuses, without valid reason, an outplacement position suited to his or her abilities. However, the employer’s mere attempt to reclassify the employee does not constitute abuse. The employee’s refusal must be clearly abusive for him to lose his rights.

To qualify as an abuse of this kind, the employee must refuse, without legitimate reason, a position that is suited to his or her abilities and comparable to the job he or she previously held, and that complies with the occupational physician’s recommendations.

Dismissal on grounds of unfitness is a delicate procedure, fraught with pitfalls.

DESRUMAUX AVOCATS is at your disposal to support and advise you in such proceedings.

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Practical information: collective redundancies for 2 to 9 employees

Your company is experiencing significant economic difficulties, to the extent that you need to consider laying off between 2 and 9 employees for economic reasons.

Here are the 10 most important steps to follow.

Step1: determining the order of redundancies according to legal or contractual criteria.

Please note: this is a mandatory step. If it is not complied with, you may be fined and ordered to pay damages to the dismissed employee.

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Stage 2: the duty to adapt and reclassify

Prior to any redundancies, the employer must implement all measures to avoid layoffs.

We therefore need to adapt employees to their jobs as much as possible, to enable them to be redeployed to other positions.

Initially, the employee should be offered positions in the same category. If no such position is available, the search should be extended to other jobs, including those that the employee could do after training to adapt to the job. This training must be of short duration.

This obligation applies to all companies, regardless of their size, and to all redundancies, regardless of the number of employees made redundant.

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Stage 3: mandatory consultation of the Social and Economic Committee (CSE)

In companies with at least 11 employees, the Social and Economic Committee (CSE) must be convened and consulted in the event of collective redundancies involving 2 to 9 employees.

The Social and Economic Committee must be provided with a certain amount of information concerning the proposed mass redundancies.

Legal provisions stipulate only one meeting of the CSE. In practice, two meetings are generally held within the company: the first to inform the employee representatives of the redundancy project, and the second to answer any questions and consult the CSE.

It must give its opinion within one month of the first meeting at which it is consulted, failing which it will be deemed to have been consulted.

Please note: in companies without a CSE, a procès-verbal de carence is required, otherwise the redundancy will be irregular.

The employees concerned would then be entitled, in addition to severance pay and compensation in lieu of notice, to specific compensation equal to at least one month’s gross salary.

In these companies, collective redundancies will follow the same procedure as for individual redundancies.

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Step 4: Transmission of the minutes of the meeting with the CSE to the regional directorate for the economy, employment, labor and solidarity in your area.

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Step 5: Invitation to a preliminary interview

The letter convening the employee to a preliminary interview must be sent to the employee by registered letter with acknowledgement of receipt, or by hand-delivered letter with acknowledgement of receipt. It must contain the obligatory information required for this type of letter.

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Step 6: The preliminary interview

The preliminary interview may not take place less than 5 working days after presentation of the letter convening the preliminary interview.

During this interview, the employee should be informed of the reasons for the decision, and given the documents relating to the contrat de sécurisation professionnel. The employee should also be reminded of the possibility of contacting services, in particular the public employment service, which can help him or her make a decision in full knowledge of his or her rights.

Reminder: the employee has 21 calendar days in which to accept or reject the contrat de sécurisation professionnel.

This cooling-off period begins the day after the employer hands over the CSP information document.

This period must be respected in its entirety, even if the employee accepts or refuses the proposal during this period.

The dismissal cannot take effect before the end of this cooling-off period.

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Step 7: Notification of redundancy for economic reasons

The letter of notification of redundancy for economic reasons may be sent to the employee before the end of the cooling-off period.

It should then remind the employee of the date on which the cooling-off period expires, and explain that if he refuses, this letter will serve notice of his dismissal.

Please note: in the case of small-scale collective redundancies, the redundancy letter can only be sent to the employee after 7 working days.

This letter must include, among other compulsory details, a statement that the employee has priority of re-employment for a period of one year from the date of termination of the employment contract, and the conditions for implementing this priority.

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Step 8: Notification of dismissal to the authorities

The DREETS must be notified of the redundancy within 8 days of the redundancy letter being sent to the employee. This notification is made via an appropriate website.

Important: if one of the proposed dismissals concerns a protected employee, you will also need to obtain authorization from the labor inspectorate for this dismissal.

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Step 9: Notice of termination

The employee may be exempted from the notice period, which may also be waived if he or she has accepted a contrat de sécurisation professionnelle.

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10th and final stage: termination of the employment contract

The employee receives compensation for the termination of his or her employment contract.

You’ll also need to hand over your end-of-contract documents.

This type of dismissal is a delicate procedure to implement within a company, and is subject to a number of imperative formalities.

CABINET DESRUMAUX AVOCATS is at your disposal to help you implement these procedures.

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Night work in the Syntec agreement

Is your company subject to the provisions of the Syntec agreement and do you want your employees to work nights?

Here are a few tips to help you get the most out of this special working arrangement, in compliance with legal and collective bargaining provisions.

What is a night worker?

Under the French Labor Code, any work performed over a period of at least nine consecutive hours, including the period between midnight and 5 a.m., is considered night work.

The night shift begins at 9 p.m. at the earliest and ends at 7 a.m. at the latest.

To qualify as a night worker under the legal provisions, the worker concerned must :

  • At least twice a week, according to his usual work schedule, at least three hours of night work per day;
  • Or complete a minimum number of hours of night work during a reference period.

⚠ Please note: the French Labor Code stipulates that night work remains an exceptional working arrangement.

To be able to use it, two cumulative conditions must be met:

  • Night work must be justified by the need to ensure the continuity of economic activity or socially useful services;
  • Imperatives to protect the health and safety of workers must be taken into account.

⚠ Please note: if night work, even on an occasional basis, is incompatible with the employee’s family obligations, the employee may refuse to work in this way, without this refusal constituting misconduct or grounds for dismissal.

How does the Syntec agreement cover night work?

The Syntec collective bargaining agreement contains special provisions for ETAM employees who work regular night shifts.

These employees are entitled to a 25% increase on the hourly rate resulting from the hierarchical minimum wage, provided that these hours are included in a work period of at least 6 consecutive hours.

Employees who are not ETAMs will benefit from the legal provisions that provide a minimum of time off for employees working night shifts.

There are no special legal or contractual provisions for employees who work occasional night shifts, but it is advisable to give them at least some time off in return.

  • Important: in order to introduce night work in your company, you will need to sign a company-wide agreement, or seek approval from the labor inspectorate.

In fact, night work can only be introduced in companies by means of an extended branch agreement or company or establishment agreement.

Apart from the elements mentioned above, the Syntec Convention has no extended branch agreement governing night work.

If you want your employees to work at night, you’ll need to adopt a company-wide agreement governing the practice of night work in your company or establishment.

In the absence of such an agreement, authorization must be sought from the labor inspectorate.

This request must be justified and accompanied by a document attesting to the prior information given to employees.

The labor inspector will announce his decision within 30 days of receipt of the request.

What are the maximum working hours for night workers?

The French Labor Code stipulates that a night worker’s daily working time may not exceed eight hours, and weekly working time may not exceed forty hours over twelve consecutive weeks.

Under certain conditions, a company agreement or authorization from the labor inspectorate allows these maximum working hours to be exceeded.

Important: night-shift workers must also undergo special monitoring by the occupational health department because of the special working conditions.

Night work is a special issue in labor law, and its implementation must be carefully monitored.

DESRUMAUX AVOCATS is at your disposal if you would like to set up this system in your company.

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10 sacred weeks: protecting young dads at work

The law offers special protection to employees during a crucial period in their lives: the 10 weeks following the birth of their child. Breaking the contract during this period is strictly regulated.

🔑 A key point to remember: except in cases of serious misconduct or for reasons totally unrelated to the birth of the child, dismissal is prohibited.

Any dismissal of an employee in breach of these rules will be considered null and void, and may give rise to the payment of damages to the employee amounting to 6 months’ salary.

For the first time, in September 2023, the French Supreme Court (Cour de cassation) highlighted this protection.

In this situation, a sales manager, dismissed two weeks after the birth of his child, had his dismissal annulled because the reasons put forward by his employer were not sufficiently solid during this protected period.

Young fathers therefore enjoy the same protection against dismissal as young mothers within 10 weeks of the birth of the child, and dismissal of the latter must be justified by the impossibility of keeping him in his job.

The case law applicable to pregnant women can therefore be applied in a similar way to young fathers.

💡 Good to know: whether for a father or a mother, these 10 weeks post-birth are sacrosanct. If there are grounds for concern, it is imperative to wait until the end of this period before taking any action.

The employee is therefore protected during this period.

Thus, economic reasons for dismissal, the end of a project, physical unfitness and the impossibility of redeployment, as well as professional incompetence, will not constitute grounds for dismissal during this period. This impossibility of retaining the employee in his post must therefore be based on circumstances totally independent of the employee.

However, it would have been perfectly possible to dismiss him on the same grounds at the end of this period.

We recommend that you be particularly vigilant with your employees who are young parents, and more generally in all situations linked to maternity, paternity or any situation that could open the door to accusations of discrimination.

When faced with such delicate situations, expert advice is essential. Naturally, DESRUMAUX AVOCATS is at your disposal to help you manage these complex cases.

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Practical information: individual redundancies

If your company is experiencing economic difficulties and you wish to let one of your employees go, we’ll show you how to proceed.

Please note: for a redundancy to be justified, your company will have to justify the economic difficulties listed in the French Labor Code. Not all economic difficulties are grounds for dismissal for economic reasons.

Step1: determining the order of redundancies according to legal or contractual criteria.

Please note: this is a mandatory step. If it is not complied with, you may be fined and ordered to pay damages to the dismissed employee.

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Stage 2: the duty to adapt and reclassify

Prior to any redundancies, the employer must implement all measures to avoid layoffs.

We therefore need to adapt employees to their jobs as much as possible, to enable them to be redeployed to other positions.

Initially, the employee should be offered positions in the same category. If no such position is available, the search should be extended to other jobs, including those that the employee could do after training to adapt to the job. This training must be of short duration.

This obligation applies to all companies, regardless of their size, and to all redundancies, regardless of the number of employees made redundant.

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Step 3: Consultation of the CSE, mandatory only if the dismissal is due to a reorganization of the company or concerns an employee representative.

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Step 4: Invitation to a preliminary interview

The letter convening the employee to a preliminary interview must be sent to the employee by registered letter with acknowledgement of receipt, or by hand-delivered letter with acknowledgement of receipt. It must contain the obligatory information required for this type of letter.

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Step 5: The preliminary interview

The preliminary interview may not take place less than 5 working days after presentation of the letter convening the preliminary interview.

During this interview, the employee should be informed of the reasons for the decision, and given the documents relating to the contrat de sécurisation professionnel. The employee should also be reminded of the possibility of contacting services, in particular the public employment service, which can help him or her make a decision in full knowledge of his or her rights.

Reminder: the employee has 21 calendar days in which to accept or reject the contrat de sécurisation professionnel.

This cooling-off period begins the day after the employer hands over the CSP information document.

This period must be respected in its entirety, even if the employee accepts or refuses the proposal during this period.

The dismissal cannot take effect before the end of this cooling-off period.

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Step 6: Notification of redundancy for economic reasons

The letter of notification of redundancy for economic reasons may be sent to the employee before the end of the cooling-off period.

It should then remind the employee of the date on which the cooling-off period expires, and explain that if he refuses, this letter will serve notice of his dismissal.

Please note: the letter of dismissal can only be sent to the employee after a period of 7 working days for non-managerial staff and 15 working days for managerial staff following the date of the preliminary interview.

This letter must include, among other compulsory details, a statement that the employee has priority of re-employment for a period of one year from the date of termination of the employment contract, and the conditions for implementing this priority.

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Step 7: Notification of dismissal to the authorities

The DREETS must be informed of the redundancy within 8 days of the redundancy letter being sent to the employee. This information must be sent by registered letter with acknowledgement of receipt.

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Step 8: Notice of termination

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The employee may be exempted from the notice period, which may also be waived if he or she has accepted a contrat de sécurisation professionnelle.

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Final stage: termination of the employment contract

The employee receives compensation for the termination of his or her employment contract.

You’ll also need to hand over your end-of-contract documents.

The redundancy procedure is a delicate one to implement, involving a number of important formalities that can call into question the validity of the procedure.

DESRUMAUX AVOCATS is at your disposal to help you set up such a procedure.

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Instructions for employing people with disabilities

As a member of the LES ENTREPRISES S’ENGAGENT community, our firm took part in a morning session on the theme of “LES ENTREPRISES S’ENGAGENT POUR UNE SOCIETE INCLUSIVE ET UN MONDE DURABLE” (COMPANIES COMMITTED TO AN INCLUSIVE SOCIETY AND A SUSTAINABLE WORLD), gaining valuable insights into the hiring process for people with disabilities thanks to our enriching exchanges with the ESAT d’Audenge.

Here’s a concise guide to the subject.

From the MDPH to professional integration :

Each disabled individual is generally registered with the MPDH (Maison départementale des personnes handicapées), which issues them with an RQTH (Reconnaissance de la qualité de Travailleur Handicapé), and the CDAPH (Commission des droits et de l’autonomie des personnes handicapées) then issues them with a notification of ESAT (Etablissement et Service d’Accompagnement par le Travail) orientation.

ESATs play a key role in helping these people enter the world of work. These structures offer a variety of activities, from landscaping and carpentry to cleaning and many other trades, while enabling the people they help to benefit from support, medico-social and psychological accompaniment and work adjustments.

The skills they acquire enable them to integrate into the mainstream workplace

ESAT Audenge: a concrete example:

The ESAT d’Audenge offers its residents personalized support on social issues and access to healthcare, enabling them to acquire autonomy in their daily lives, particularly in terms of transport, housing, access to rights and citizenship, and adapted sports.

The ESAT d’Audenge, for example, has several areas of activity enabling it to offer disabled people a range of different trades and services to its customers, such as landscaping, laundry, carpentry, cleaning of premises, firewood, industrial subcontracting, support towards and/or within employment…

The Integration Pathway :

  • ESAT workshop :

Once integrated into the ESAT, the person discovers a trade that suits him or her. This can be done either within the ESAT or with an external company.

Support at work enables the person to evolve in a professional environment that meets his or her needs, through adaptations and compensations at the workstation. The skills acquired may be cross-disciplinary, making them transferable to other positions. Individuals can gain access to the ordinary working environment through a variety of mechanisms, such as :

– Outsourced team: a team and a mentor go out to the company to carry out production-related tasks.

– Discovery internship: This internship enables the student to discover a profession or a company over a period of up to 2 months.

  • Availability:

After an internship, the person can be placed with a company. The employee remains on the ESAT’s payroll, and the hours worked are billed back to the company. Invoicing is based on an hourly rate indexed to the current minimum wage. This contractual period, which can last up to 2 years (= renewable once with the authorization of the MDPH), is an opportunity for the person and the company to build a relationship of trust.

  • Integration into the mainstream through a common law contract:

A fixed-term or open-ended contract may follow the period of secondment. It will be accompanied by a support agreement.

Importance of the Support Agreement :

  • It reassures both parties: the employer knows he has the support of the ESAT, and the employee feels supported in his integration process.

This is a standby agreement (= 1 year, renewable 2 times).

  • During this period, the employee can exercise his or her right to return to the ESAT if he or she does not feel ready to continue. Similarly, the company can request a breach of contract.

A legal obligation not to be forgotten :

Let’s not forget: all employers with 20 or more employees are required by law to hire 6% of their total workforce for the disabled. In addition to meeting this obligation, this is a great opportunity to diversify your teams and contribute to a more inclusive society.

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News: New rules for very small businesses’ professional elections

The CERFA model for the procès-verbal de carence has just been modified, and this change will be of great interest to companies with between 11 and 20 employees.

Previous regulations

Until now, in these companies, it was sufficient to inform staff of the organization of professional elections.

If no employee put himself forward as a candidate within 30 days, the VSE could draw up a “procès-verbal de carence” (minutes of default) attesting to the absence of elections.

The CERFA model did indeed include a specific box for companies with fewer than 20 employees, stating that “in accordance with the provisions of article L.2314-5 paragraph 5 of the Labor Code, no election has been organized”.

New regulations

Following a ruling by the French Constitutional Council, the Ministry of Labor has revised its interpretation of the relevant legal provisions.

From now on, very small companies (TPE) are exempted from negotiating the pre-electoral protocol with the trade unions; in other words, they can draw up this agreement internally without going through external negotiations.

However, these companies are still required to organize professional elections.

If, at the end of the two rounds of voting, there is neither an elected representative nor a candidate, the company may draw up a “procès-verbal de carence”.

Please note any employee may stand for re-election within 6 months of the end of the last election. In other words, the PV de carence is only valid for 6 months.

The new regulations seem rather onerous for a company. We’ll be sure to let you know if the situation changes.

Naturally, DESRUMAUX AVOCATS will be happy to help you organize this important event for your company.

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SYNTEC Agreement: On the terms and conditions of working time arrangements under the SYNTEC Agreement

The Syntec collective bargaining agreement provides for a number of working time arrangements, including JRTTs, to meet the needs of the various activities it covers.

It is appropriate to present all the terms and conditions envisaged by this agreement, before analyzing the additional options that may be available to the companies concerned.

What is RTT?

  • RTT = reduced working hours
  • To qualify, they must be provided for in a collective agreement.
  • They are used to compensate for the fact that collective working hours are exceeded, in the form of rest days.
  • In this way, RTTs are granted to employees whose employment contract provides for hours in excess of 35 hours.

The scheme, introduced in the early 2000s, was subsequently abolished by the law of August 20, 2008. RTTs survive in two ways:

  • Through collective agreements signed before 2008.
  • In compensation schemes for exceeding collective working hours introduced after 2008 and still referred to as “RTT” or “JRTT” in the SYNTEC agreement.

What are the terms of the SYNTEC agreement?

The SYNTEC agreement envisages three ways of organizing working hours.

  • The standard Syntec agreement

This arrangement applies to ETAM employees and certain managerial staff. It corresponds to a standard 35-hour working week.

Under this arrangement, it is possible to replace all or part of the overtime payment by an equivalent rest period. To do this, a company-wide agreement must be adopted, or, in the absence of trade unions, after consultation of the CSE and agreement of the employees concerned.

This method does not therefore offer any considerable leeway for the companies concerned.

In other words, either they can negotiate a company agreement to replace the payment of all or part of overtime, or they can’t, and the only option open to these companies will therefore be to place their employees on the 35-hour working week and pay all the overtime worked, which unfortunately doesn’t correspond to the economic reality of many small companies subject to the Syntec agreement.

  • The “carrying out assignments” modality

Option no. 2 in the Syntec collective bargaining agreement corresponds to a fixed number of hours per week, with an annual ceiling in days.

The employees concerned may only be engineers and managers whose annual remuneration is at least equal to the annual Social Security ceiling, which in 2023 corresponds to the sum of €43,992.

These employees are less autonomous than executives eligible for a fixed-day agreement, but they do have special assignments that prevent them from following a strictly defined timetable.

Under this arrangement, employees can work up to 38.30 hours a week, with a maximum of 219 working days a year.

The 3.5 hours of overtime are intended to be compensated by half-days of under-activity (recovery of these days in the form of compensatory rest, etc.).

Please note: in order to apply this system, the remuneration of employees concerned by this system must include variations in working hours up to a limit of 10%, but must not be less than 115% of the agreed minimum annual salary.

In other words, employees working under this arrangement must receive an annual remuneration corresponding to 115% of the agreed minimum wage, or an annual remuneration at least equal to the annual Social Security ceiling.

Here again, such arrangements are in no way suited to SMEs and VSEs subject to the Syntec Agreement.

Such companies can’t afford to meet the financial conditions imposed by the industry-wide agreement to set up this system.

Nor do these companies necessarily have the option of derogating from this arrangement by adopting a more suitable working time arrangement through a company agreement(see below).

Clearly, these companies are condemned to either work 35 hours and pay overtime, or not work overtime and reduce their productivity.

  • Daily rate

The Syntec Agreement offers companies the option of a fixed-days contract (modalité n°3).

The employees concerned may only work a maximum of 218 days per year per calendar year, including the solidarity day, for an employee who is present for a full year and has acquired all his or her paid leave entitlements, not taking into account conventional seniority leave (and any other leave provided for by company agreement or usage) and exceptional leave for family events provided for in the Syntec agreement.

Please note: within the Syntec agreement, only employees classified as 3.1 cannot be placed on a fixed-day contract.

A rider to the Agreement has slightly relaxed this condition and will soon enable engineers and managers classified in position 2.3 to be placed on a fixed-day contract.

However, if you want to place an employee on a fixed day rate, you will need to pay them 120% of the agreed minimum wage for employees in position 3.1, and 122% of the agreed minimum wage for employees in position 2.3.

This represents a gross monthly salary of €3,905.22 for an employee in position 2.3 and €4,292.40 for employees in position 3.1.

As a reminder, the changeover to a fixed-term working week also requires compliance with a number of legal and contractual conditions in order to be valid and avoid the risk of the fixed-term agreement becoming null and void.

Once again, this system is not adapted to the reality of many companies covered by the Syntec agreement.

How can I opt out of the Syntec agreement?

In reality, it appears that these procedures are not suited to most small and medium-sized companies covered by the SYNTEC agreement.

In fact, it presupposes overly drastic conditions that do not correspond to the economic reality of these companies.

Clearly, these companies can’t afford to comply with the terms and conditions proposed by the Syntec Agreement, because they can’t afford to pay their fixed-hour employees a minimum of €43,992 a year, or to apply the various supplements provided for by the branch agreement in these different terms and conditions.

For these companies, it is therefore necessary to derogate from the branch agreement.

This derogation can be achieved through the adoption of various company agreements:

Adopting a company agreement on the organization of working hours

The organization of working hours within companies can be achieved by means of agreements aimed at setting up an organization of working hours over a period longer than a week and at most equal to a year (or even three years, if authorized by a branch agreement or collective bargaining agreement).

This type of agreement makes it possible to adapt employees’ work patterns throughout the year, depending on the company’s activity, and thus avoid overtime during peak periods.

Clearly, a reference period is set, with a limit, above which overtime will be paid to employees.

For example, the limit for one year is set at 1607 hours: if at the end of the year one or more employees have exceeded this limit, they will have to be compensated for the overtime hours worked during the year.

It is also possible to set a weekly limit, e.g. 39 hours, beyond which hours worked during the same week are in any case considered as overtime, and paid with the salary for the month in question.

This arrangement can be put in place through a company agreement, or through a unilateral commitment by the employer.

In companies without employee representatives, adoption of the company-wide agreement will require a company-wide referendum and approval of the project by a 2/3 majority of the workforce.

Please note: if you decide to implement this type of agreement through a unilateral commitment, it can only be organized in work periods, equal to 9 weeks in companies with fewer than 50 employees, and four weeks for companies with 50 or more employees.

A company-wide agreement on the organization of working hours can therefore be an appropriate solution for small and medium-sized businesses wishing to derogate from the provisions of the Syntec Agreement and organize their own working hours.

However, the adoption of such an agreement presupposes either negotiation with employee representatives, or the introduction of a company-wide referendum in companies without such representatives. In the latter case, it will be necessary to obtain the approval of 2/3 of employees.

The introduction of such an arrangement by means of a unilateral commitment is less attractive because of the short period during which the agreement can be put in place.

Setting up an agreement overriding collective bargaining provisions relating to fixed-rate working days

Syntec lays down very strict conditions for setting up a fixed-rate working day agreement with a company’s employees.

Once again, these conditions may prevent smaller companies from implementing this type of agreement, even though they are sometimes more favorable to employees and better suited to the company.

Since September 2017, company agreements have enjoyed real primacy over branch agreements in this area.

It is therefore perfectly possible for your company to conclude an agreement extending the scope of fixed-price agreements.

This agreement may enable you to open up access to fixed-price agreements to employees who are not in position 3.1 or 2.3.

On the other hand, it will not be possible to extend this possibility to employees who are not managers or engineers, as the latter do not have sufficient autonomy to access this type of agreement. This would run the risk of rendering null and void any lump-sum agreements concluded on the basis of such an agreement.

It is also possible to provide for lower remuneration than that stipulated in the Syntec Agreement.

In fact, the only imperative that cannot be derogated from, even by company agreement, are the collective bargaining minimums defined by regularly revised scales.

On the other hand, the arrangements implemented within Syntec, under which an employee in position 3.1 can only be placed under a fixed-term workweek agreement if he or she receives 120% of the agreed minimum, do not constitute an imperative arrangement.

It is perfectly possible to derogate from this rule by means of a company agreement, and to provide for a lesser or different form of compensation.

Once again, this will require the adoption of a company-wide agreement, in line with the above-mentioned conditions.

Why derogate from the Syntec Agreement’s provisions on the organization of working hours?

It would appear that the Syntec collective bargaining agreement’s provisions on the organization of working hours are not adapted to the economic reality of small and medium-sized companies subject to this agreement.

It is therefore necessary for these companies to use company-level negotiations to derogate from branch provisions, within the limits set by law.

These derogations will enable these companies to adapt their working hours to their real needs, and thus support their growth and productivity.

Please note: there is no question of allowing companies to derogate from the branch in their sole interest, without taking into account the interests of employees.

The aim is to enable these companies to adapt working hours to their needs, while taking into account employees’ working conditions and envisaging compensation packages for employees that are simply better adapted to the economic reality of these companies.

Negotiations at company level would thus enable small and medium-sized businesses to set up working time arrangements that are fully adapted to their needs, with compensation packages for their employees that are also adapted to their economic health.

In fact, it seems important for the SYNTEC Convention to reform in this area.

Firstly, because the temptation to derogate from the rules it has implemented in this area is great for these companies, which find these provisions totally unsuitable and out of touch with their reality.

As a result, the effectiveness of the agreement is less important, which is a real problem since the original aim of such an agreement is to federate as many companies as possible within the same branch and with the same working conditions, thus providing unrivalled legal certainty for employees.

Secondly, because most small and medium-sized companies wishing to derogate from these provisions, which hinder their economic development, cannot in practice negotiate within their companies.

In the absence of employee representatives, it is difficult to set up a company referendum and negotiate directly with employees.

Not only is such an arrangement particularly time-consuming in these companies, where management is generally multi-tasking, but it is also particularly tricky, in practice, to explain to employees the reasons for these negotiations, to make them understand the benefits for the company and the quid pro quos that each party must agree to negotiate in order to conclude this agreement.

In the final analysis, it is difficult to negotiate with employees who are not accustomed to this exercise, which requires real experience, which employee representatives generally have. This is because it is necessary to be able to take into account the needs of the agreement for the company, and not just the modification of their own working conditions, which can be tricky for employees who would refuse any major modification to their working conditions, even if this were absolutely necessary to enable the company to evolve, and even if the proposals made to these employees appeared, objectively, to be perfectly acceptable.

We therefore feel that Syntec needs to carry out a major overhaul of this part of the agreement, in order to make it better adapted to the reality of all companies, and ultimately to reinforce the effectiveness of this agreement at national level, which would have the advantage of enabling all companies to benefit from the same base in this area, also ensuring that employees enjoy uniform working conditions throughout the industry.

In the absence of any reform, it seems clear that many of the companies that have not yet done so will derogate from these drastic conditions through company negotiation.

Naturally, DESRUMAUX AVOCATS will be happy to provide you with information on any changes to the Syntec regulations in this area, or to help you negotiate and adopt a company-wide agreement.

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Contractual length of trial period: the French Labor Code sets the upper limit

As a reminder, the French Labor Code sets the length of the trial period for employees on open-ended employment contracts according to their qualifications:

Employee qualification Length of trial period Maximum duration including renewal
Workers and employees 2 months 4 months
Supervisors and technicians 3 months 6 months
Managers 4 months 8 months

Please note: renewal of the trial period is not automatic, and cannot be provided for from the outset of the contractual relationship.

Your employee will need to sign an amendment to renew the trial period.

Some collective bargaining agreements provided for longer trial periods, while others were shorter. For example, the Syntec agreement, before it was amended, used to provide for shorter trial periods than those stipulated by law.

Some agreements provided for longer periods than those stipulated by law, and these provisions were maintained until then.

The transposition of a European directive puts an end to this possibility.

As a result, from September 9, 2023, no longer than the legal maximum duration will apply.

The French Labor Code therefore sets the maximum length of the trial period.

All your employees will therefore have to comply with the legal requirements set out above, and their probationary period may not last any longer.

On the other hand, collective agreements providing for shorter working hours remain in force, provided they were signed after June 26, 2008, the date on which the relevant legal provisions came into force.

Agreements with shorter terms concluded before this date are no longer in effect.

The provisions of the Syntec agreement were rejected by the Cour de cassation in 2016, before being amended to include the same duration as the law.

You should now refer to the legal provisions to find out the maximum duration authorized for the trial period of your employees, depending on their qualifications.

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Breaking a contract before its term: resolutory clause vs. unilateral rescission

Business contracts are often lengthy, and it is not uncommon for one party to wish to terminate the contract early.

In such a case, the party wishing to break the contract usually refers to the clauses provided for.

In most cases, the contract provides for :

  • a duration clause, which stipulates that the contract is for a fixed term and is tacitly renewable, unless terminated before the end of the term;
  • a so-called “resolutory” clause, which lists a series of situations in which a party may terminate the contract before its term.

The resolutory clause, which lists an exhaustive number of situations in which it can be invoked, seems to be the only solution for breaking the contract.

In this situation, the party experiencing a situation not covered by the resolutory clause may feel that he has no solution at his disposal. But this is not the case.

Article 1224 of the French Civil Code provides that a contract may be unilaterally terminated by any party who has suffered a “sufficiently serious breach”.

The order of the termination options set out in this article left some doubt as to whether a contract could be unilaterally terminated when a resolutory clause existed.

New legal twist: The French Supreme Court (Cour de cassation) ruled on June 8, 2023 that the existence of a clause in the contract does not prevent the parties from having recourse to the mechanism of unilateral rescission.

Please note: unilateral termination is subject to certain conditions, as non-performance must be sufficiently serious.

It may therefore be necessary to send a formal notice to your co-contractor in advance, to demand that he or she respect his or her commitments.

DESRUMAUX AVOCATS can help you negotiate a contract or break one.

Staying well-informed and well advised are essential if you are to evolve serenely in the complex world of business contracts.