In French law, the open-ended contract (CDI) is the rule, and the fixed-term contract (CDD) the exception.
The CDD must be in writing and must include the mention of an authorized ground of appeal.
The CDD cannot therefore be used as a trial period; otherwise, he would be reclassified as a permanent contract if the employee contested the reason for appeal.
QUESTIONS TO ASK
Can I validly justify one of the reasons for resorting to fixed-term contracts listed by the labor code (temporary increase in activity, replacement of an absent employee, recruitment pending the entry into position of an employee in CDI, usage…)?
THE CONCEPT OF TEMPORARY ACTIVITY INCREASE
This is one of the most frequently used remedies, especially when the company does not really have any remedies. However, if the reason does not have to be justified on the date of signature of the contract, in the event of a dispute, the employer will have to demonstrate the reality of the temporary increase in activity. Otherwise, he risks a reclassification of the fixed-term contract into a permanent contract.
A recent ruling by the Social Chamber provided interesting details on how this ground should be understood:
A company had recruited an employee on a fixed-term contract on the grounds of an “increase in activity linked to the reorganization of the service”.
The employee maintained that the reorganization of a service was not a lawful ground for recourse to the CDD and requested the reclassification of the contract as a CDI.
The Social Chamber has held that if the mere reorganization of a service does not in itself constitute a ground for appeal, it is different when this reorganization involves a temporary increase in activity .
However, the employer demonstrated that it had recruited the employee on a fixed-term contract as part of a prototype research phase, which required having new skills , and reorganizing the service.
“Studies and Laboratories” around this prototype project, not necessarily in a sustainable manner since no final order was linked to this project .
The hiring of the employee on a fixed-term contract was therefore not intended to permanently fill a job linked to the normal and permanent activity of the company and the fixed-term contract was not reclassified as a permanent contract .
Be careful with the drafting of the CDD which must be established in writing , and include mandatory information . Otherwise, he would be reclassified as a CDI.
The fixed-term contract must also be given to the employee no later than 2 working days of hiring.
Also watch out for the multiplication of fixed-term contracts on the same position, because the frequency of recourse to such contracts can be an indication of the fact that they are actually used to provide a lasting job in the company.