The implementation of a fixed days contract obliges the employer to ensure the control and monitoring of each employee’s work hours and workload. Failing that, the fixed days contract has no effect.
This means that if the employer does not respect the rules governing the protection of the health and safety of an employee in a fixed days contract, there is a risk that the fixed days contract will be considered ineffective and effective working time will be counted according to statutory provisions.
Thus, in its ruling of 6 January 2021 (Soc., n°17-28.234), the Cour de Cassation ruled that:
• “When an employer does not ensure the application of the rules relating to the protection of the health and safety of an employee, this failure deprives the employer of the possibility of invoking the fixed days contract which, as a result, is not void but has no effect (…); that the unenforceability of the fixed days contract entails the calculation of the number of effective working time and overtime according to statutory employment rules ; that as RTT days are a consideration relative to the fixed days contract (…) such RTT days are devoid of substance if the fixed days contract is removed, even if the fixed days contract is declared without effect and not null and void“;
• “If the fixed days contract, to which the employee was bound, was deprived of effect, for the duration of the suspension of the fixed days contract, the payment of RTT days granted in performance of the fixed days contract was not due.”
Therefore, based on Article 1302-1 of the French Civil Code (numbered Article 1376 at the time of the facts), which states:
” Whoever receives by mistake or knowingly what is not due to him must restore it to the person from whom he received it unduly. ”
the Cour de Cassation, according to the principle of recovery of indue payment, considers that when a fixed days contract has no effect, the employee is obliged to reimburse the RTT days that he benefitted from under such fixed days contract.
Effectively, the Cour de Cassation recalled that an employee could not obtain the payment of overtime while maintaining the benefit of RTT days acquired under the fixed days contract without effect.
Consequently, the deprivation of effect has a double consequence: on the one hand, the payment of overtime which will be due by the employer and, on the other hand, the reimbursement of the RTT days which will be paid by the employee.
Therefore, caution must be necessary: an employee who may wish to take action against his employer and raise the unenforceability of his fixed days contract, should be advised that he may risk having to reimburse RTT days acquired in application of such fixed days contract.
(1) RTT: compensation time for extra hours worked.
