Trial period: innovation by the French Civil Supreme Court!

May 13th 2016

The Cour de cassation (French Civil Supreme Court) has recently responded to an issue that had not been resolved since 2008.

In a ruling of March 31, 2016 (no.14-29184), the Court considers that the durations of the trial periods provided by a collective bargaining agreement prior to the entry into force of the law no. 2008-596 of June 25, 2008, shorter than the new durations provided by this law, ceased to apply as from June 30, 2009, including renewal.

With the law of June 25, 2008:

  • The duration of the trial period is 2, 3 or 4 months, depending on whether the employee is a manual worker or office worker, technician, supervisor or an executive (French Labor Code, art. L.1221-19);
  • The trial period may be renewed once upon the condition that the possibility is provided by the collective bargaining agreement and the employment contract or the hiring letter (French Labor Code, art. L.1221-19 and 23);
  • The trial period, including its renewal, shall not exceed 4, 6 or 8 months depending on the professional category (French Labor Code, art. L.1221-21).

Given the numerous collective bargaining agreements defining the duration of the trial period, the law shall govern the relations between the law and the collective bargaining agreements, classified according to their date:

  • The collective bargaining agreement provisions subsequent to the law must respect the law: they may not provide for longer durations, but shorter durations are accepted (French Labor Code, art. L.1221-22);
  • The collective bargaining provisions prior to the law:
  • If they are longer, they shall prevail over the law (French Labor Code, art. L.1221-22); the case law nonetheless judged that durations considered to be excessive (6 months, once renewable for executives) were unenforceable against the employee;
  • If they are shorter, the law has expressly withdrawn the former initial durations (French Labor Code, art. L.1221-19) as from July 1, 2009, without considering the case of the durations for a renewal of the trial period.

The combination of these provisions gave rise to considering the possible duration for the renewal of the trial period: in the presence of a collective bargaining agreement providing for a trial period of 3 months renewable once for the same duration for executive employees, was it possible to provide for a trial period of 4 + 3 months or 4 + 4 months?

Most of the critics opted for a duration of 4 + 3 months by noting that Article II of the law only made reference to article L.1221-19 of the French Labor Code (initial duration) and not to article L.1221-21 (maximum duration including the renewal). The French Administration also reached a similar decision (DGT Circular by the Directorate General for Employment no.2009-5 of March 17, 2009).

The employment section of the Cour de cassation is not of this opinion and goes further towards the benefit of the employers.

Concerning the collective bargaining agreement for technical consultants (called Syntec) which, since 1991, has provided for a trial period of twice 3 months, the Court considers that it is possible to stipulate a trial period of 4 months, renewable for 4 months, in an executive’s employment contract that falls within the scope of the Syntec collective bargaining agreement.

Finally, it must be recalled that the employer may notify the termination of the employment contract until the last day of the trial period. The notice period of one month, provided by article L.1221-25 of the French Labor Code, after three months of the employee’s presence in the company, shall be paid in the form of a compensatory indemnity. It is imperative that the employee is not asked to work after the last day of the trial period as the employer shall risk being sentenced for unfair dismissal (Cour de cassation, employment section, November 5, 2014 no. 13-18114, Lorrain v./Sté Tabillon).

Chystelle Daub
Marc Turquand d’Auzay