When do we talk about a ‘succession’ of fixed-term contracts? On what grounds is succession allowed? What are the limits in terms of the number of fixed-term contracts and their duration? These are sensitive issues in practice, and deserve a brief review of the relevant rules. Before delving into them, we would like to emphasise the vague nature of certain concepts included in the law, which is a source of legal uncertainty, and we would therefore urge caution. The sanction provided for is the presumption of the conclusion of a permanent contract, which entails an additional financial risk in the event of termination of the contract.
Successive fixed-term contracts
For there to be successive fixed-term contracts, there must first be at least two fixed-term contracts between the same parties. For example, the rules governing successive fixed-term contracts will not apply if the two contracts are not signed with the same employer.
It should also be noted that the legislator does not define what is meant by ‘succession’. It is accepted that fixed-term contracts do not necessarily have to follow each other immediately or continuously. An interruption does not render the prohibition on successive fixed-term contracts ineffective. Practice has even shown that a long-term interruption (a few months, for example) does not rule out the successive nature of a fixed-term contract. The law does, however, provide for an important exception to the prohibition and the related penalty: interruption due to the employee.
Succession will not be sanctioned where the interruption is due, for example, to:
- the employee's wish to take family leave;
- the employee's wish to travel for a few months;
- the employee's wish to be absent due to his state of health.
Interruption not due to the employee but justified by the nature of the work or other legitimate reasons
Where the interruption between the fixed-term contracts is not due to the employee, the employer may still prove that the succession was justified by the nature of the work or by other legitimate reasons. For example, case law has accepted that the succession was justified, for example
- because of the occasional or seasonal nature of the activity, which is characteristic of certain sectors such as arts;
- in the case of scientific missions linked to external funding;
- because the company's economic situation makes the amount of work totally unpredictable.
The employer must provide proof of these factors and demonstrate that it had no intention of circumventing the rules governing permanent contracts.
Duration and number of fixed-term contracts
The legislator has also provided for an exception to the ban on successive fixed-term contracts when the following conditions are met by the parties:
- A maximum of 4 contracts are concluded..
- Each contract is for a minimum of 3 months.
- The total duration of all successive contracts does not exceed 2 years.
These limits may be exceeded with the prior authorisation of the Social Inspectorate.
It should also be noted that while some people used to try to get round the 2-year limit by alternating fixed-term contracts with replacement contracts, specific rules have now been laid down by the legislator. Nor do we deal here with the case of temporary work, which is also governed by special rules.
In conclusion, it should be noted that the rules are relatively simple and clear, as long as you stay within the limits of duration and number mentioned above. Beyond that, employers will face greater legal uncertainty, leaving the final say to the courts.
This article may also be of interest to you: Fixed-term or permanent contract, what's the best choice?
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Catherine Lipski, Lawyer at Eubelius
Sacha Henet, Lawyer at Eubelius