44. Fixed-term contract for a replacement

To cover for the absence of one of your employees, you can take on an employee on a fixed-term contract. However, drafting such a contract requires great care.  

Reason for the appointment

When you hire an employee on a fixed-term basis to replace an absent employee, you must draw up a written employment contract that includes certain mandatory details.

If any of the mandatory details are missing, this may result in the fixed-term contract being reclassified as a permanent contract if the employee lodges a claim with the employment authorities.

The contract must include a precise definition of the reason for using this fixed-term contract (replacement of an employee and the reason for their absence).

REMINDER: You must bear in mind that a fixed-term employment contract for replacement purposes which does not include a precise definition of its reason is deemed to be an indefinite-term contract.

KEY POINT: Where a fixed-term contract is entered into to replace an employee, specifying the reason precisely means that the contract must include the name and professional qualifications of the person being replaced.

If this is not the case, the fixed-term contract is reclassified (i.e. converted) into a permanent contract. However, such reclassification into a permanent contract is not without cost to your company. In such a case, you must pay the employee compensation of no less than one month’s salary, plus – if the employee has already left your company at the time of reclassification – the following:

• The statutory or collectively agreed redundancy payment;
• Compensation in lieu of notice;
• Damages for dismissal without real and serious cause.

Other mandatory provisions

Furthermore, please note that a fixed-term contract must also include:

• The end date of the contract, as well as a renewal clause where it has a fixed term;
• The minimum duration for which it is entered into where it is for an indefinite term;
• A description of the post. It should be specified whether this post appears on the list of posts presenting particular risks to employees’ health or safety; a description of the role held or, where the contract is entered into to provide the employee with further vocational training, a description of the nature of the activities in which the employee is involved within the company;
• The title of the collective agreement applicable to the employment relationship;
• The duration of any probationary period provided for. If the contract does not provide for a probationary period, no such period exists;
• The amount of remuneration and its various components, including, where applicable, bonuses and other pay supplements;

Failing this, the risk remains the same. You should therefore be particularly careful when drafting a fixed-term contract.

REMINDER: A replacement fixed-term contract (CDD) should only be used in cases of statutory suspension of the contract.

Successive fixed-term contracts: no waiting period in certain cases.

Successive fixed-term contracts: a waiting period applies if the contract is for the same post, subject to certain conditions.

Fixed-term contract followed by a permanent contract: no waiting period.