The employment contract is the legal act that binds the employer and the employee. It classically lists the rights and obligations of each party.
It can be distinguished from other employment contracts by several criteria, such as :
- The provision of work ;
- The payment of a remuneration ;
- The existence of a subordinate relationship.
The main criterion that distinguishes the employment contract from other contracts (and in particular contracts for the provision of services) is the subordination relationship.
The latter is « characterized by the performance of work under the authority of an employer who has the power to give orders and directives, to control their execution and to sanction the failures of his subordinate; that work within an organized service may constitute an indication of the link of subordination when the employer unilaterally determines the conditions of execution of the work » (Cass. soc. November 13, 1996, n° 94-13.187).
The different types of employment contracts
There is no single form of employment contract. In this sense, the employer has, to a certain extent, the choice as to the form and duration of the employment contract, as long as it falls within the legal, regulatory and conventional conditions.
The open-ended employment contract
The most common contract, the so-called “CDI” refers to a contract that has – theoretically – no end date. It is the most frequently concluded contract. As a matter of principle, the employer must conclude an open-ended contract with the employee, unless he can justify the use of another type of contract.
The fixed-term employment contract
By definition, a fixed-term contract is not a contract without a term. Indeed, it “may not have as its object or effect the permanent filling of a job related to the normal and permanent activity of the company” (art. L.1242-1 of the French Labor Code).
It is a form of contract that can only be concluded for the execution of a precise and temporary task, and only in certain cases (art. L.1242-2 and L.1242-3 of the French Labor Code) such as :
- The replacement of an absent employee ;
- Temporary increase of the company’s activity ;
- Seasonal jobs, etc.
Site or operation contract
This refers to a contract concluded « for an indefinite period », for the duration of a construction site or operation. The conditions for the use of this type of contract are set out in an agreement or an extended collective branch agreement.
In the absence of an agreement, the contract may be concluded in sectors where its use is customary and consistent with the regular practice of the profession that uses it as of January 1st, 2017.
Temporary employment contracts
Also known as a « temporary employment contract », « assignment contract », this contract can only be concluded in specific cases, listed by law. This contract binds a temporary employee and an employer, which is the temporary employment agency. The latter makes an employee available on a temporary basis to a user client for the performance of an assignment (art. L.1251-1 of the French Labor Code).
In any case, it cannot, whatever its reason, have either the object or the effect of permanently filling a job linked to the normal and permanent activity of the user company (art. L. 1251-5 of the French Labor Code).
The conclusion and performance of the employment contract
The basic conditions for the conclusion of the employment contract
The employment contract, as a contract, is subject to the rules of common law, and thus to the law of contracts as set out in the Civil Code (art. L. 1221-1 of the French Labor Code). The employment contract must be negotiated, formed and executed in good faith (art. 1104, c. civ.). Like any other contract, the validity of an employment contract is subject to several rules (art. 1128 c. civ.).
Thus, several elements are necessary :
- Both the employee and the employer must have consented to the conclusion of the contract ;
- The parties have the capacity to contract ;
- The content of the contract is lawful and certain.
The absence of these conditions renders the employment contract null and void.
The conditions of form of the employment contract
In principle, the conclusion of an employment contract does not require a written document (art. L. 1221-1 of the French Labor Code). However, certain types of employment contracts require a written document :
- Fixed-term contract ;
- Temporary employment contract ;
- Apprenticeship contract ;
- Part-time employment contracts, etc.
It should be noted that in the absence of a written document, the employment contract is deemed to have been concluded for an indefinite period.
For example, a fixed-term contract must contain a precise definition of the reason for its use. Otherwise, it will be deemed to have been concluded for an indefinite period (art. L. 1242-12 of the French Labor Code).
Termination of the employment contract
The diversity of employment contracts has as a corollary the existence of different ways of breaking up disputes.
The contract may be terminated: :
- On the employer’s initiative: some examples: dismissal, breach of the trial period, breach of the fixed-term employment contract, etc. ;
- On the employee’s initiative: some examples: resignation, termination of the trial period, termination of the employment contract, judicial termination of the employment contract, etc. ;
- By mutual agreement between the two parties: e.g. termination by mutual agreement, amicable agreement (termination of a fixed-term contract), etc.
Issues related to the drafting of the employment contract
As a legal document that establishes the relationship between the employer and the employee, companies must pay particular attention to the employment contracts they conclude. Indeed, failure to comply with the substantive or formal conditions may lead to the reclassification of a « fixed-term contract » (lato sensu) as a permanent contract (art. L. 1245-1 of the French Labor Code). In such a case, the requalification as a permanent contract will have a retroactive and immediate effect. Similarly, a part-time employment contract may be reclassified as a full-time employment contract in case of missing or unclear information.
Furthermore, since the employment contract serves to define the framework of the relationship between the employer and the employee, it is important to draft it carefully. Its significance will be even greater when specific clauses are agreed upon, which must be expressly written and comply with certain legal or jurisprudential formal requirements, such as non-competition clauses, training reimbursement clauses, mobility clauses, probationary period, etc.