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CDD: This can not be used to fill a permanent job pending recruitment under a permanent contract

You can hire employees on fixed term contracts only in cases defined by the Labor Code. This is especially possible when you hire an employee on a permanent contract, but he may not take his position immediately. A pending fixed-term contract ends when an employee hired on a permanent contract enters into actual service. However, you cannot use this reason to fill a permanent position when recruiting on a permanent contract.

CDD: Entering the service of an employee hired on a permanent contract is pending

The termination of fixed term employment contracts (CDDs) is strictly governed by the Labor Code. This kind of deal is really an exception. In principle, you should hire your employees on a permanent contract (CDI) basis.

So you can only finish CDDs in a few cases that are fully listed by the Labor Code (Art. L. 1242-2). Approved reasons include the transfer of an employee hired on a permanent contract from pending for his or her effective entry into service.

This reason indicates that a position must be filled in your organization (following the firm departure or job creation of one of your employees). You must hire an employee on a permanent contract to fill this vacancy, but he is not immediately available (e.g. he must give notice to his previous employer).

This reason must be included in the employee’s employment contract, which must be established in writing. The contract must specify the identity of the employee hired on the permanent contract to replace the fixed-term contract and whether he or she is pending effective entry into service.

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This fixed term contract, moreover, should not have the intent or effect of permanently filling the work associated with the normal and permanent operation of your company. Therefore its duration should be limited to a maximum of 9 months (unless otherwise specified by contract or extended branch agreement). Also, whether it is completed within a specified time frame or only covers the minimum period of the contract.

These rules are recommended under criminal penalties (3750 euros fine 7500 euros and 6 months imprisonment) and civil penalties (backward classification of CDD in CDI from the first disorder).

To find out more about the terms applicable to fixed term contracts for this reason, we recommend our documentation. ” Tissot Community Enterprise ACTIV “This includes the Lumio interactive process” Hiring on a Fixed Term Contract: Activity Increase / Replacement You can also download our exclusive CDD sample.

But can you use this CDD reason to fill a vacancy in the time required to hire on a permanent contract? The Cassation Court has now recalled that no.

CDD: Can not use pending recruitment in permanent contract

In the case filed in the Court of Cassation, an employee was hired several times on a fixed-term contract. Some of these agreements were finalized following the dismissal of an employee to ensure his replacement during the recruitment process for a new employee on a permanent contract. He was hired on a permanent contract to occupy this position before he was finally fired.

The employee seized the industrial tribunal and specifically demanded that his fixed-term contracts be reclassified into permanent contracts and that the resulting sums be paid. He accused the company of using an unauthorized CDD format.

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His appeal was rejected by the Court of Appeal. It considered it necessary to replace the post occupied by the dismissed employee. Setting up the recruitment procedure for filling the vacancy from this period will thus become vacant.

The employee challenged this decision. And the Court of Cassation agreed with him. It recalls the reasons for approved fixed term contracts. And refers to it ” In any case, the employer is not authorized to use a fixed-term contract to complete work related to the normal and permanent functioning of the company pending the recruitment of the employee. “.Therefore the conversion of fixed term contracts into permanent contracts occurs.

Cour de cassation, social chamber, April 13, 2022, n ° 20-10.079 (Under no circumstances is the employer authorized to use the CDD to fill a job related to the normal and permanent functioning of the recruiting company.)

Amelie Giannino

Lawyer in Social Law and author of Tissot editions