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The employment relationship

Country specific laws

What laws and regulations govern the employment relationship?

The employment relationship in France is subject to a complex body of rules issued by multiple sources. The French Constitution outlines the fundamental rights (eg, union rights) of employees; there are also EU rules which affect the French employment legal framework (eg, the EU directive regarding posted workers).

The Labour Code sets out basic rules which derive from laws adopted by legislative bodies or the government.

Collective bargaining (both industry-wide and company agreements) play an important role in the creation of rules for the employment relationship. Some of the provisions adopted by collective bargaining agreements can supersede the rules set by the Labour Code.

Who do these cover, including categories of worker?

Legal rules apply to all individuals or legal entities which take part in an employment relationship. As there is no particular legal definition of the employment relationship, case law has set out the following cumulative criteria for identifying such a relationship:

  • the subordination of one person to another;
  • the performance of an activity; and
  • a remuneration granted for performing said activity.

Individuals working for state entities under a public law contract are not covered by employment law and benefit from specific rules according to their specific status.

Rules issued from collective agreements may cover only certain categories of worker or apply only to a certain geographical zone, industry or company.

Misclassification

Are there specific rules regarding employee/contractor classification?

The employee/contractor classification in the French legal framework has been extensively disputed, notably with regards to Uber drivers and bike couriers who have initiated legal proceedings in order to be requalified as employees and to benefit from the protected status of employees.

In order to characterise an employment relationship, labour courts do not limit themselves to the contract signed between the parties. Judges also look at factual elements and attempt to identify the characteristic features of the employment relationship as outlined above.

Contracts

Must an employment contract be in writing?

French labour law provides that the parties are free to decide under which form they want to enter into an employment contract. This can take the form of a verbal agreement or a written agreement. However, French labour law provides that the employer must inform the employee in writing of the conditions applicable to the employment contract. Therefore, most contracts are in writing.

The Labour Code provides that some types of employment contract must be in writing and contain certain mandatory provisions. This applies to the following contracts:

  • definite-term employment contracts;
  • part-time employment contracts;
  • temporary employment contracts;
  • home worker employment contracts;
  • apprentice employment contracts; and
  • professionalisation employment contracts.

Moreover, some industry-wide collective bargaining agreements impose the necessity of a written agreement between the parties.

Are any terms implied into employment contracts?

Yes, the employer must:

  • provide the employee with work;
  • comply with the rules applicable in the employment contracts in industry-wide collective bargaining agreements and in company-wide agreements;
  • ensure the employee’s safety; and
  • perform the employment contract in good faith.

The employee must:

  • perform his or her employment contract professionally and in good faith;
  • ensure his or her own safety; and
  • meet confidentiality obligations while performing the contract and after the termination of the employment contract.

Are mandatory arbitration/dispute resolution agreements enforceable?

Such agreements do not exist per se in France. However, settlement agreements entered into between the employer and the employee are enforceable.

How can employers make changes to existing employment agreements?

French labour law provides two types of change that can be made by the employer to existing employment contracts:

  • changes in the employee’s work conditions which do not require the approval of the employee; and
  • modification of the employment contract which requires the employee’s prior approval.

The French courts have ruled that the contractual character of a modification is assessed in light of the provisions stated within the employment contract and the following elements which by nature are considered as essential to any employment contract and thus require the employee’s consent prior to any change:

  • function;
  • remuneration;
  • working time; and
  • place of work.

However, if the employee is a protected employee (eg, a staff delegate, a member of a health and safety committee or a works council member) his or her agreement is required in both types of change mentioned above.

Foreign workers

Is a distinction drawn between local and foreign workers?

The main distinction drawn between local and foreign workers is that foreign workers must have a valid work permit in order to be legally employed in France. Moreover, an employer that hires a foreign worker (non-European Union) must pay a tax to a specific organisation (Ofii) if the length of the employment contract is longer than three months. The amount of the tax depends on:

  • the remuneration paid to the employee; and
  • the length of the employment contract.

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