Working time practices based on a maximum number of working days per annum (rather than weekly limits on working hours) may be unlawful following recent decisions of the Supreme Court.

This gives rise to potential overtime claims and the risk of fines and criminal action for undisclosed employment.

In particular, consultants/advisory firms, wholesale industries and the chemical industry are impacted (covered by either SYNTEC, or the Chemical Industries collective bargaining agreements – which are widely applied in France).

Recent Supreme Court decisions have held that provisions contained in certain national collective bargaining agreements which have been widely used by employers as a legal basis for annualised working time arrangements (which exclude overtime) are unlawful as they currently stand because they do not provide adequate protection for the health and safety of employees, or an assurance that limits on working time and minimum rest periods will be respected.

Employer representatives and trade unions are currently renegotiating the relevant terms to try to reach an agreement which will enable this type of flexible working arrangement time to continue.

Actions for employers

Employers should keep careful records of working time, ensure compliance with mandatory rest periods and watch out for signs of burn-out and stress.

In addition, they should regularly review employee workloads and ensure that that measures to protect the health and safety of employees are both in place and adequate.