In a recent decision of January 25th, 2023, the French Supreme Court gave new hints to help companies define whether or not an employee meets the criteria to be eligible to a working-time-in-days scheme (“forfait-jours”).
As a general rule, only employees (executives or not) enjoying a genuine autonomy in the organization of their work and whose duties do not require they follow a specific work schedule may be subject to a working-time-in-days scheme (article L. 3121-58 of the French Labor Code).
Case submitted to the French Supreme Court
In the case at hand, a veterinarian employee, with an executive status, benefited from a 156 worked days per year working time scheme. The employee brought an action before the Employment Tribunal to challenge the validity of this working time scheme and thus requested back payment for the overtime she had allegedly worked.
The employee argued that she could not validly be subject to a working-time-in-days scheme since she was not enjoying a genuine autonomy in the organization of her work considering the structure of the veterinary office in which she worked.
The Court of appeal dismissed this argument, considering that “given the small size of the office and the presence in the office of either a veterinary assistant or another veterinarian, it did not appear that “the functioning of the office required the employee to comply with the opening hours of the office“. On the contrary, the Court noted the employee’s autonomy in the organization of her work which made it impossible for her to respect a specific work schedule defined in advance.
The Court of appeal therefore confirmed the enforceability of the working-time-in-days scheme and dismissed the employee’s claim for overtime payment.
Decision of the French Supreme Court
Upon appeal from the employee, the French Supreme Court thus had to assess the validity of the working-time-in-days scheme based on the actual conditions of performance of the employee’s duties.
According to the French Supreme Court, the facts noted by the Court of Appeal, which related to the organization of the company, did not make it possible to “characterize the employee’s autonomy in the organization of her work schedule required by the performance of the responsibilities entrusted to her nor the reasons for which she was unable to follow the office work schedule“.
The Court of Appeal should have assessed in real terms whether the employee enjoyed a real autonomy in determining her working hours.
In practice, in view of the increasingly stringent case law, we recommend that the individual agreement by which the employee agrees to benefit from a working-time-in-days scheme should include a paragraph on the reasons that make the application of this scheme necessary with regard to the position held by the employee.