While unlawful discrimination in the UK workplace may result in significant awards of compensation for the employee, in France employers can end up in prison. Christine Guillot-Bouhours looks at the nation’s key issues in recruitment and contracts
Employee rights in France are contained in legislation, conventions and collective agreements. They are the minimum protections that an employer owes to its employees and the parties cannot agree by contract to less favourable terms.
Restrictions in hiring
The principle of non-discrimination is one of the founding principles of both French social legislation and the Treaty of Rome (see box). It supposes that an employer should not take into account, either at the time of recruitment of an employee or at termination of employment, their sex, race, religion, nationality, health, or political convictions.
All those who propose to hire staff in an industrial or corporate establishment must notify the Office of Work Inspection by registered letter of their intention do so.
In the first eight days of each month, a statement must be made to the departmental director of employment and manpower by establishments employing at least 50 employees, notifying the director of any employment contracts that have been signed or terminated during the preceding month. Organisations must also keep a personnel register listing the hiring and departures of personnel, as well as a register of foreign employees.
The employer is obliged to register the employee with the organisation responsible for social security deductions in the region eight days before employment is due to commence.
To simplify the formalities prior to hiring, employers declare their employees to the social and retirement organisations by way of the "Single Notification of Hiring", addressed to URSSAF – the organisation to which social security contributions are paid by employers. This also covers the notification requirements of other social organisations, on matters such as health insurance, unemployment, employment healthcare and medicine.
Hiring Foreign Employees
Under the Treaty of Rome, citizens of the European Union can take advantage of the freedom of movement and settling and are assimilated with national employees regarding employment rights.
When hiring non-EU individuals, the employer should ensure, at time of hiring, that the foreigner resides on French territory on a regular basis and should note on the personnel register for each foreign employee their field of work and their work authorisation number, and should annex copies of that authorisation.
As foreign employees working in France are normally subject to the French Social Security regime under the same conditions as French employees, the same notification requirements relating to national employees also apply to foreign employees.
THE EMPLOYMENT CONTRACT
The full-time, indefinite employment contract is not subject to any particular form: it can be verbal or result from the practical arrangements between the parties. Employers are, however, required to give the employee a written statement, whatever the nature of their contract, within the first two months of employment, including:
- Identification of the parties
- Workplace and job title
- Rights and obligations
- Start of the contractual relationship
- Duration of paid holidays
- Duration of employment
- Salary level
The Ministry of Employment deems that the entries on the employee’s payslip, and those on the document given upon hiring, meet this requirement.
In the case of part-time or fixed-term contracts, however, there must be a written contract between the parties. The contract should be drafted in French even if performed in a foreign country.
Mandatory employee protection
French law is founded on the principle of contractual freedom: employers and employees are free to have all clauses on which they agree listed in the employment contract. This principle, however, is not absolute. Thus the clauses cannot breach the fundamental rights of the person or public order, nor can they depart unfavourably from the legal or conventional mandatory employee protections set out in French law.
The trial period
The trial period is, for the employer, an opportunity to judge the professional ability and the potential of an applicant and, for the employee, the possibility to determine whether the work conditions are suitable. During this period the contractual relationship can be terminated without notice from either party.
A trial period is not automatically presumed to apply and the employee should be informed of its existence at the time of concluding the contract. The parties can freely determine the duration of the trial period and decide on the possibility of renewing it. The duration should nevertheless correspond to the time necessary for the employer to test the skills of the employee while taking into account their qualifications and the type of employment proposed.
Notice of termination
The period of notice of termination required from an employee is determined either by the law, by applicable conventions or by collective work agreement. In the absence of any of those factors, it is determined by the typical notice period applying in the profession or as otherwise agreed in the contract of employment (if more favourable to the employee).
The minimum notice required from the employer depends on the employee’s length of service. No minimum notice is required for those with less than six months’ service; it is still necessary to refer to any collective agreement or common practice within the employee’s profession or industry as to whether another notice period applies. A month’s notice is required for employees with between six months and two years of seniority, extended to two months for employees having at least two years of seniority.
The employer can forego employee notice by making a payment in lieu of notice equal to the remuneration the employee would have earned if they had worked during this period.
The minimum wage
A guaranteed minimum wage of a gross monthly salary of 6,881.68 francs applies to all employees and cannot be overridden by an agreement between the parties.
The legal duration of employment for employees has been reduced from 39 hours to 35 hours per week, as of 1 January 2000 for firms with more than 50 staff and as of 1 January, 2002 for those with less than 50. This reduction can be accomplished by the employee accumulating supplementary holidays or by calculating their work hours on an annualised basis.
In principle, the employee acquires, per month of service, the right to two-and-a-half working days of paid holiday, up to 30 working days.
Penalties for discrimination
Any employer found to have discriminated against a prospective employee on the basis of race, sex, marital status, religion or nationality faces potential imprisonment of two years and a fine of 200,000 francs. This prohibition extends equally to discrimination based on the disability or the health of an employee, unless the physical disability is medically certified by the company doctor.
Employers are also forbidden from discriminating against an employee on the grounds of their links to a union organisation. The sanction for such discrimination is a fine of 25,000 francs – raised to 50,000 francs in the case of a second offence – and a prison sentence of up to one year.
Proven discrimination in recruitment based on an employee’s pregnancy can result in a fine of 10,000, rising to 20,000 for a second offence.
The Personnel Today guide to international employment law is edited by Clare Murray.
Christine Guillot-Bouhours is a partner specialising in employment law at Paris law firm Rambaud Martel Clare Murray is an employment law partner at Fox Williams