French Supreme Court, 27 March 2019, n° 16-23.800
In a decision of 27 March 2019, the French Supreme Court decided that employees who have concluded a flat-rate per year agreement (“forfait-jours”) less than 218 days (“reduced flat-rate per year agreement”) cannot be considered as part-time employees.
In this case, an employee entered into a 131-day flat-rate per year agreement with his employer. Dismissed for serious misconduct, the employee claimed for his contract be regarded as a full-time employment contract and that he be paid a salary reminder in this respect. He alleged that his employer had not complied with the legislation on part-time work, which provides for mandatory provisions in the employment contract, in particular the breakdown of working hours between the days of the week or the weeks of the month (Article L. 3123-6 of the French Labour Code).
The employee was dismissed by the Court of Appeal and then lodge an appeal before the French Supreme Court.
The French Supreme Court dismisses the appeal. Employees who have concluded a flat-rate per year agreement which is less than 218 days cannot be considered as part-time employees. The French Supreme Court thus approved the Court of Appeal’s decision that the employee was not a part-time worker, so that he could not claim for his employment contract be regarded as a full-time contract based on the infringement of the rules relating to mandatory provisions of the part-time contract.
The flat-rate per year agreement mechanism presupposes a real autonomy of the employee in the management of his time schedule which is inconsistent with the constraints imposed by the French Labour Code, in particular with regard to the breakdown of the working hours of the part-time employee. This inconsistency should lead not only to the exclusion of legal provisions relating to full-time requalification, but also all other legal provisions such as the headcount rules or the priority for the allocation of a full-time position.