Focus on Part-Time Employment Contracts

(Cass. soc. 22-5-2024 n° 22-11.623 FS-B, G. c/ Sté Geox Retail)

In a recent decision dated May 22, 2024, the Court of Cassation addressed, for the first time, the issue of sanctions related to non-compliance with the minimum weekly working hours for part-time employment. The Court also clarified how this minimum duration applies to the hiring of foreign students. Additionally, it ruled on the request to reclassify a fixed-term employment contract as a permanent one when the employee refuses to sign the proposed contract.
On the first point, it is worth recalling that Articles L. 3123-7, L. 3123-19, and L. 3123-27 of the Labor Code establish a minimum working time for part-time employees set at 24 hours per week, or the equivalent calculated on a monthly basis or over a period determined by a collective agreement related to work time arrangements. Therefore, what sanction should be applied when a part-time employment contract irregularly stipulates a minimum working time of less than 24 hours per week? The Court of Cassation answered this question on May 22, 2024, filling a legal gap since the Labor Code is silent on this issue.
In this case, the employee, holding a residence permit valid for more than three months with the mention “Student,” was hired as a sales associate due to a temporary increase in activity under a four-month fixed-term contract with a working time of six hours per week. The contract was renewed for another four months. The employment relationship continued beyond the term without any signed contract. The claimant sought the reclassification of his part-time contracts as full-time contracts.
The Court of Cassation, following the Court of Appeal, ruled that merely concluding a part-time employment contract with a duration less than the 24-hour minimum per week stipulated by Article L. 3123-27 of the Labor Code does not result in the reclassification of the contract as a full-time one. Therefore, the minimum duration should be viewed not as a validity condition for the part-time contract but as a guaranteed minimum for the employee. Currently, non-compliance with this minimum is sanctioned by the lower courts with back pay and, if the employee can prove distinct damage beyond lost wages, with damages (see, e.g., Paris Court of Appeal, October 5, 2022, no. 19/09320).
The Court’s ruling also considered the application of the 24-hour minimum weekly working time to foreign students, who are subject to a specific regime limiting their paid employment to 964 hours per year. In this case, the employee sought back pay corresponding to the hours worked up to 964 hours. The Court of Appeal rejected the employee’s claim for back pay, stating that the weekly working time could not exceed 18 hours per week in accordance with the annual cap of 964 hours (964 hours / 52). The Court of Cassation overturned the ruling, stating that the minimum working time of 24 hours per week for part-time employees must also apply to foreign workers holding a residence permit with the “student” designation, within the maximum hours they are allowed to work (964 hours per year). This approach reflects a cumulative application of the relevant regulations. As a result, the 24-hour weekly minimum applies to foreign students within the limits of the hours they are authorized to work, meaning that within this limit, the claimant was entitled to receive back pay.
Finally, the Court clarified the issue of reclassifying a fixed-term employment contract as a permanent one when the employee refuses to sign the proposed contract. According to Article L. 1242-12 of the Labor Code, a fixed-term contract must be in writing and clearly define its purpose. If these requirements are not met, the contract is considered to be for an indefinite period. Therefore, the signature of a fixed-term employment contract is mandatory, and failing to obtain it generally leads to reclassification as a permanent contract.
What happens when an employee requests reclassification to a permanent contract after deliberately refusing to sign the extension of their fixed-term contract offered by the employer before its expiration? In agreement with the Court of Appeal, which rejected the employee’s claim, the Court of Cassation fortunately ruled that the employee could not invoke their refusal—demonstrating bad faith—to demand the reclassification of their fixed-term contract as a permanent one.