If an employee on a fixed-term or temporary contract refuses the permanent contract offered to them, he may have his unemployment benefits withdrawn. Emmanuel Labrousse, co-head of Walter France’s Social working group, explains the formalities that companies must respect for these new regulatory provisions to apply.
Within the framework of the “Labor Market” law, the public authorities wanted to sanction job seekers who, abusively, would refuse to occupy under a permanent contract a position similar to that previously occupied under a fixed-term contract or in temporary work. However, so that the monitoring of the refusal(s) of the job seeker to occupy a similar position on a permanent contract is effective, the employer will have to face new obligations. These new obligations came into force on January 1, 2024.
The law fights against abusive refusals by employees
As a reminder, the law of December 21, 2022 known as the “Labor Market” introduced into the Labor Code a specific procedure when the employer offers the employee at the end of a fixed-term contract or temporary employment contract the continuation of the contractual employment relationship in the form of a contract of indefinite duration. The employer must, in such a case, formalize the position offer in writing and within a reasonable time and inform France Travail in the event of refusal to occupy the proposed position. This information procedure has the corollary of the measure which deprives employees on fixed-term contracts of unemployment benefit. (or on a temporary contract) who have twice refused a permanent contract for an identical or similar job within twelve months. The employer must therefore inform France Travail in the event of the employee's refusal.. Attention, Consequently, companies must now scrupulously respect the terms of application of this information obligation, both with the employee and with France Travail in the event of refusal.
Demonstrate that the permanent contract is equivalent to the previous position
The conditions of the permanent contract proposal to the employee are very standardized. Only permanent contract proposals at the end of a fixed-term contract or a temporary employment contract refused by the employee may be subject to mandatory declaration to France Travail.. Consequently, these proposals made by the employer are themselves conditioned and supervised. Indeed, cases should be treated differently depending on whether the permanent contract proposal is made during a fixed-term contract or a temporary contract :
– if the permanent contract proposal is made to an employee on a fixed-term contract : this proposal must concern the same job or a similar job, be accompanied by at least equivalent remuneration for equivalent working hours, falling under the same classification and without change of place of work (1) ;
– if the CDI proposal concerns an employee on a temporary contract, however : in this case, it must relate to the same job or a similar job, without change of workplace (2). On the contrary, CDI proposals that do not fit into these hypotheses do not result in mandatory information from France Travail. for example, in the event of a permanent contract proposal for a job position not similar to that occupied by the employee, the latter's refusal does not trigger the mandatory procedure for declaring the refusal to France Travail. Finally, the permanent contract proposal must in all cases be made before the end of the fixed-term contract or temporary assignment (3).
On the form, pay attention to certain dates and deadlines
Since January 1, 2024, the employer who wants to offer a permanent contract at the end of a fixed-term contract or a temporary contract in an identical or similar job must comply with a specific procedure. The employer is required to notify the employee of this proposal by registered letter with acknowledgment of receipt., by letter delivered by hand against discharge or by any other means giving a certain date to its receipt, before the end of the fixed-term contract (or temporary contract). The employer must grant the employee a reasonable period of time to decide on the proposal for a permanent contract, indicating to him that at the end of this reflection period, a lack of response from him will constitute rejection of this proposal. If the notion of reasonable time is left to the discretion of the employer, a period of between eight and fifteen calendar days should be sufficient. Emmanuel Labrousse warns : “In order to avoid any dispute with the employee, it is advisable to specify, in the permanent contract proposal, the detailed characteristics of the position proposed to be able to demonstrate that this job is identical or similar and meets the conditions provided for by law. Otherwise, the employee could criticize the employer for not having been sufficiently informed to make an informed decision. »
The information conditions of France Travail must also be scrupulously respected
The company must be able to justify that the proposed permanent contract had the same characteristics as the fixed-term contract or the temporary contract.. In the absence of a response from the employee or in the event of refusal of the permanent contract proposal, the information given to France Travail must be composed of several elements, which vary depending on the current contract with the employee.
– If it is a fixed-term contract : the information must consist of the description of the proposed job, justification elements to demonstrate that the proposed job is identical or similar to that held on a fixed-term contract, that the proposed remuneration is at least equivalent, that the proposed working time is equivalent, that the job classification is the same and the workplace is the same.
– If it is a temporary contract : the information must consist of the description of the proposed job, justification elements to demonstrate that the proposed employment is identical or similar to that of the mission carried out and that the workplace is identical.
In all cases, it is also appropriate to indicate the time allowed for the employee to respond and the date of refusal, whether express or implied.
In the case of a tacit refusal, it is necessary to indicate the expiration date of the reflection period left to the employee. If the information is incomplete, France Travail may request additional information from the employer or user company, who then benefits from a period of fifteen days to respond.
The employee is informed by France Travail of the consequences on his unemployment benefit
Upon receipt of all information, France Travail will inform the employee of the receipt of all the information concerning them and, on the other hand, the consequences of refusing a permanent contract on entitlement to unemployment insurance benefit.
Please note that at the end of a fixed-term contract or temporary assignments, if the employee refused, during the previous twelve months, at least two permanent contract proposals that met all of these conditions, the person concerned will no longer benefit from unemployment insurance benefit.
(1) article L1243-11-1 of the Labor Code
(2) article L1251-33-1 of the Labor Code
(3) article R1243-2 of the Labor Code
The platform to declare refusal within one month
This information must be produced electronically on a specific platform., available from the France Travail website, within a maximum period of one month from the express or tacit refusal of the employee.
The platform is accessible at the following address :
www.demarches-simplifiees.fr/commencer/
refusal-of-permanent contract-inform-francetravail
