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The employee’s taking of days off extends the trial period. This extension is not limited to working days

An employee was hired on February 17th with a 4-month trial period. The trial period was therefore supposed to end on June 16th. In the meantime, the employee took 7 “RTT” days off in May. The employer notified the employee the renewal of her trial period on June 24th. It then terminated the employment contract in September.

The employee brought a claim before the Labor Court to obtain damages for unfair dismissal, arguing that her trial period had then ended.

According to the employee, the taking of days off does not extend the trial period since the “RTT” days off – being the consideration for overtime hours performed beyond the 35-hour working time – cannot be regarded as an absence preventing the employer from assessing the employee’s professional skills.

The employee also argued that, having taken 7 “RTT” days off, the trial period could only be extended by 7 days; non-business days in the company (such as weekends or public holidays) should not be taken into account for the calculation of the extension of the trial period.

The French Supreme Court rejected these two arguments.

It indeed considers that since it is meant to allow the employer to assess the employee’s professional skills, the trial period is therefore extended by the time corresponding to the employee’s absence, even if the latter results from “RTT” days off. Moreover, the French Supreme Court considers that in the absence of differing contractual or CBA’s provisions, the duration of this extension may not be limited to the working days included in the suspension that led to the extension.

In the case at hand, the employee’s 4-month trial period was supposed to expire on June 16th at midnight. The employee had taken 7 “RTT” days off, including 5 continuous days during the week from Monday 19th May to Friday 23th May. The Supreme Court held that Saturday 24th May and Sunday 25th May, during which the employee had not actually worked, were to be taken into account to extend the trial period, which had consequently expired on 25th June at midnight. As a result, the renewal of the trial period on 24th June was lawful.

French Supreme Court, September 11, 2019, n° 17-21.976 F-P-PB, W. c./ Sté Axa.