Employment & Labour Law
This is the solution adopted by the Social Division in a judgment dated 7 February 2024 (Cass. Soc., 7 February 2024, No. 22-20.258), in the following terms:
"Where a user undertaking has recourse to an employee of a temporary employment undertaking in breach of the provisions referred to in Article L. 1251-40, the employee may claim from the user undertaking the rights corresponding to an open-ended contract taking effect on the first day of his first irregular assignment, including where he has concluded a temporary open-ended contract with the temporary employment undertaking.
(...)
Notwithstanding the existence of a temporary open-ended contract, the termination of the contractual relationship at the end of an assignment at the initiative of the user company shall, if the contract is requalified as an open-ended contract in its respect, be construed as a dismissal giving rise, where applicable, to a right to severance pay".
In this case, an employee had signed a temporary open-ended contract (contrat à durée indéterminée intérimaire - CDII) with a temporary employment agency, introduced by the law of 17 August 2015.
Under the terms of the CDII, the employee was hired and paid by the temporary employment agency, which made her available to several user companies for successive assignments.
This employee had been seconded to a user company as an operator between 2016 and 2019.
When this company ceased to provide her with work in May 2019, the employee applied to the labour court on 26 September 2019 to have her temporary assignments reclassified as open-ended contracts and to contest the termination of the employment relationship, before being dismissed on 26 November 2019 by the temporary employment agency.
Her request for reclassification was granted by the Grenoble Court of Appeal, which ruled that the legal provisions relating to the CDII did not rule out reclassification by the user company, particularly where the conditions for using temporary work had not been met.
This assessment was strongly contested by the user company, which appealed to the French Supreme Court, arguing firstly that a temporary employee could not be bound, for the same service, by two separate open-ended contracts, and secondly, the fact that such a reclassification had the effect of enabling the employee to obtain double compensation as well as damages from both the temporary employment company and the user company, for termination without real and serious cause, on account of the same assignments carried out within the user company.
However, the Court of Cassation found in favour of the Court of Appeal, which, in order to reclassify the assignments as open-ended contracts under ordinary law with regard to the user company, held that the assignments had resulted in the permanent filling of a position linked to the normal and permanent activity of the user company.
It also upheld the position of the Court of Appeal, which, as a result of this reclassification, considered that the termination of the contractual relationship at the end of an assignment, at the initiative of the user company, amounted to a dismissal, in respect of which the employee was entitled to severance pay.
In this case, both the Court of Appeal and the Court of Cassation held that the dismissal procedure had not been followed and that the dismissal was devoid of real and serious grounds.
The user company was therefore ultimately ordered to pay the employee compensation for paid leave and notice, in respect of the relevant paid leave, as well as redundancy pay and damages for dismissal without real and serious cause.
The Court of Cassation held that the purpose of the contracts was not the same, even when the contracts were terminated at the same time, after the end of an assignment with the user company.
Henceforth, user companies will have to bear in mind that a temporary open-ended contract concluded with a temporary employment agency is not incompatible with a possible requalification as an open-ended contract against them, since the employee can effectively assert his rights against both companies.
