Atypical workers in France: how do French and British laws differ?

Millions of workers are employed under temporary or part-time contracts in France and in the UK; however, the French laws try to limit the recourse to these contracts. Alain-Christian Monkam, UK employment solicitor and French Avocat, sets out the different approaches to atypical workers in France and the UK.

Fixed-term employees

A fixed-term employee is appointed under a contract that has a definite start and end date, or terminates automatically after the completion of a particular task or the occurrence of a specific event.

In France, the employee’s best chance to get a permanent contract in a company is first to get a fixed-term contract (contrat à durée déterminée – CDD); eight out of 10 French employees are recruited via a fixed-term contract first. Employees on CDDs have the protection of being entitled to equal treatment with permanent employees.

In addition to this, the French rules as to these temporary contracts are stringent:

• There are only a few statutory situations where an employer is allowed to use a fixed-term contract (namely absence cover, seasonal tasks and temporary increase in the employer’s activity).
• The employer must comply with a strict formality as to the written particulars of the contract.
• Except for some cases (for example a CDD to cover an absence), a fixed-term contract can be renewed only once for the same position. If the employer wishes to sign a second CDD after the completion of the first CDD (renewal included) for the same position, it must comply with a minimum period between the CDDs, during which no employee can be appointed for this position (this period depends on the duration of the first CDD – from 33% to 50% of its duration).
• Depending on the reason for recruitment, the duration of a fixed-term contract is capped (no longer than 18 months except in certain cases).
• At the end of the CDD, the employee must be paid a severance payment amounting to 6% to 10% of the total wage paid during the performance of the contract.
• Except for on the ground of gross misconduct or by mutual agreement, the employer cannot terminate a CDD before the termination date, without the payment of all the wages which were due until the termination date.

In Britain, the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 look simpler. The main goal is to give the fixed-term employee a right to claim equal treatment with permanent employees as to a number of topics, for example: terms and conditions of employment, including pay and pensions; qualifying periods for employment benefits; access to training and development; and the right to be informed of available vacancies. It is only where an employee has carried out successive fixed-term contracts for more than four years that he or she can claim a conversion to permanent status.

Agency workers

In an agency arrangement, a worker enters into a contractual relationship with a temporary work agency (actually an “employment business”), which in turn supplies the worker to work for one of its clients. In France, the rules relating to agency workers (travailleurs intérimaires) are similar to those mentioned above regarding fixed-term contracts. These rules apply to the “mission contract” between the employee and the temporary work agency.

There are far fewer agency workers in France (500,000) than in the UK (around 960,000 – Office for National Statistics, December 2014). In Britain, the Agency Workers Regulations 2010 set out the principle of equal treatment between an agency worker and a comparable direct employee of the hirer (that is the end-user) for a similar position.

However, it is only after a period of 12 weeks on assignment in the same role that the agency worker is entitled to equal treatment in certain areas (eg pay, holidays and working time) and improved pregnancy rights.

Part-time employees

Part-time employees are those who work fewer hours than full-time colleagues. In France, there are half as many part-time employees (4.2 million salariés à temps partiel) than in the UK (eight million). In addition to equal treatment with full-time employees, the French Code of Labour provides for various rigid rules relating to, for example: the possibility of entering into a part-time contract; the form of such a contract; and the level and payment of overtime.

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Basically, no part-time contract can be signed if it provides for fewer than 24 hours each week. However, this lower limit does not apply in the following: where a collective bargaining agreement provides for an ‘”opt-out clause”; where the contract duration is less than one week; or where the contract is signed to cover an absence.

In Britain, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 entitle part-time workers to receive the same treatment as full-time workers, on a pro rata basis where appropriate, in respect of a number of items, for example: pay rates; sick pay; parental leave pay; pension; holidays; and training.