The legislation which supervises the use of part -time is particularly strict. If the company does not want to risk a full -time requalification or other sanctions, It will have every interest in respecting certain rules. Following two decisions of the Court of Cassation, Emmanuel Labrousse, co-head of Walter France’s Social working group, provides details on this risk.
Two recent case laws have shed light on the correct use of a part -time employment contract. The first concerns the realization of a schedule greater than 35 hours by an employee under an annualized part -time contract, The second respect for the minimum working hours of 24 hours.
Part -time annualized time : The annual volume of hours is taken into account
In this case*, A company agreement developed working hours over the year and provided that the working hours of part -time employees were less than 1,600 hours. As a reminder, The threshold for the legal full -time working time is 1,607 hours per year. But in this company, The conventional threshold had been set at 1,600 hours per year. An annualized part -time employee, whose weekly schedule punctually exceeded the 35 -hour threshold per week, asked for the requalification of his full -time contract. The Court of Cassation, based on several articles of the Labor Code **, recalled that, In the event of an annual reference period, Additional hours cannot bear the working time of a part -time employee at the level of the legal threshold of 1,607 hours or the conventional threshold if it is lower (which was the case in this company). Consequently, For the Court of Cassation, The reclassification of the full -time contract is appreciated with regard to the legal annual threshold of 1,607 hours or conventional (1,600 hours in this case).
In this matter, exceeding the legal working time (35 hours) by the employee was punctual, without its annual working time of 1,600 hours being exceeded. His full -time requalification request was therefore rejected. For Emmanuel Labrousse, "The requalification of the full -time contract is appreciated with regard to the annual threshold, It doesn't matter that the 35 -hour weekly hourly hourly is punctually exceeded. Be careful, however, in the event of regular overruns ! »
Watch out for the minimum part -time working time
The law fixes the minimum duration of part -time work at 24 hours per week. By way of derogation, A lower duration may however be implemented :
- under certain conditions, provided for by an extended convention or branch agreement ;
- requested by employees wishing to accumulate several jobs to reach an overall duration of activity corresponding to full time or at least equal to 24 hours per week or to face personal constraints ;
- requested by employees wishing to benefit from the progressive retirement system ;
- Awarded by law, on request, employees under 26 continuing their studies.
In this case ***, A worker has been hired as a part -time cdd seller for a weekly period of six hours. His employment contract was subsequently renewed by various endorsements. After a work stoppage, The closure of the shop in which he worked did not allow him to resume his post. This employee seized the pruden homal jurisdiction of various requests, among which the reclassification of his contract as an indefinite full -time contract and a recall of a related salary. In support of his request, He argued that his contract had been concluded for a period of less than 24 hours per week, In violation of article L3123-7 of the Labor Code. The Court of Cassation judged that his employment contract did not have to be reclassified in full-time contract for non-compliance with the minimum working hours of 24 hours. On the other hand, She imposed a salary reminder on the basis of 24 hours weekly. For Emmanuel Labrousse, "Even if the requalification is not always incurred, Failure to comply with part-time regulations may have significant financial impact. Prudence must therefore be in order ".
* Court of Cassation, social chamber, February 7, 2024, n° 17692
** L3121-41, L3121-44, L3123-9 et L3123-20
*** Cass. soc. 22-5-2024 n° 22-11.623
