Late Permanent Employment: When the Employer Abuses Fixed-Term Contracts, the Court of Cassation Sanctions

Imagine the scene: in Dax, in the Landes, an employee of the family allowance fund is hired for a few months, then extended, then again. After six months, he hopes to be made permanent, but his employer refuses. You might think: 'That will never happen to me, I am a landlord, not an employer.' Yet, this principle – not to abuse temporary contracts – also concerns residential leases or employment contracts of a building caretaker. What does the Court of Cassation say? It firmly condemns the employer who keeps an employee in a precarious situation beyond the contractual period. Explanations.

The Facts: A Story That Happens Every Day

Mr. X, employed by the family allowance fund (CAF) in his region, is recruited on a temporary basis. Initially, he has several fixed-term contracts (CDD) of a few months. Then, for the last period, a six-month contract is signed, allowing him to prepare for a technician's diploma. He obtains the diploma but fails the professional internship. The CAF then refuses to make him permanent, citing the failure in the internship. The employee takes legal action. The dispute reaches the Court of Cassation in 1978. The central question: did the CAF violate the national collective agreement for staff of social security bodies, which provides that 'any new agent is made permanent, at the latest after six months of actual presence in the services, in one or several periods'? The Court answers yes. For it, the CAF could not keep Mr. X on a temporary basis beyond six months, even for an internship. By doing so, it committed a fault.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article 17 of the collective agreement, which it interprets strictly: as soon as an employee totals six months of presence (in one or several periods), the employer must make them permanent. It does not matter that the employee did not pass their professional internship. In short, the agreement does not make permanent employment conditional on passing an exam. The CAF argued that it could not make permanent an agent who had not validated their internship. But the Court retorts that, if the CAF was unable to make permanent, it should have terminated the contract rather than keep the employee in a temporary situation beyond the prescribed period. In other words, the employer cannot hide behind an alleged impossibility to evade its contractual obligations. The reasoning is clear: the collective agreement creates a right for the employee to be made permanent after six months. The employer who does not respect this period commits a fault, engaging their civil liability (Article 1240 of the Civil Code, which requires reparation for damage caused by one's fault).

What few people know is that this decision, although old, remains a reference for all cases where an employer uses fixed-term contracts abusively to avoid making permanent employment. Its importance is such that it is still cited today. But what does it actually change for you?

What It Changes for You — Concretely

For the landlord: imagine you hire a building caretaker in Mimizan. If you have them work more than six months on a fixed-term contract without making them permanent, you risk being ordered to pay damages for non-compliance with the applicable collective agreement (for example, that of building caretakers).

For the tenant employee: if your employer keeps you on a fixed-term contract beyond six months when the collective agreement provides for permanent employment, you can claim damages or even reclassification as a permanent contract. Be careful though: the 1978 decision concerns a specific agreement, but the principle is often taken up by judges.

For the real estate professional (developer, agent): if you employ temporary staff (accountant, salesperson), you must know the permanent employment periods provided for by the collective agreement. In Dax, for example, a real estate agent who employs an assistant for more than six months without making them permanent exposes themselves to legal risks.

undefined, I have encountered cases where employers, convinced they could extend fixed-term contracts indefinitely, had to pay several thousand euros in damages. For example, in Mont-de-Marsan, a service company had to compensate an employee to the tune of €5,000 for abusive maintenance on a fixed-term contract.

Four Tips to Avoid This Type of Dispute

• Check the time limits in your collective agreement: each sector has its own rules. For staff of social security bodies, it is six months. For others, it may be three months or one year. Do not assume.
• Do not extend a fixed-term contract beyond the contractual period: if the agreement requires permanent employment after six months, you must either make permanent or terminate the contract. Keeping on a fixed-term contract is a fault.
• Document the reasons for using a fixed-term contract: in case of dispute, you will need to prove that the temporary use was justified (replacement, increased activity). Keep written records.
• Consult a lawyer lawyer: before hiring or extending a contract, seek advice. A 30-minute consultation can save you years of proceedings.

Further Reading: Related Case Law and Developments

This 1978 decision is part of a protective line for the employee. For example, a 2005 Court of Cassation ruling (No. 03-45.200) recalled that exceeding the contractual permanent employment period gives rise to damages, even if the employee has not suffered economic loss. More recently, in 2018, the Court specified that reclassification as a permanent contract can be requested if the employer has abused fixed-term contracts. The trend is therefore constant: judges sanction the employer who circumvents collective agreements. For the future, employers must be all the more vigilant as employees are better informed and do not hesitate to take matters to the employment tribunal.

In Practice: What to Do

FAQ: Questions You May Ask

• Can I be made permanent if I failed a professional internship? Yes, if the collective agreement does not make permanent employment conditional on passing the internship. In the 1978 case, the employee was recognised as entitled to permanent employment despite the failure.
• What should I do if my employer keeps me on a fixed-term contract beyond six months? Gather your contracts, note the dates, and consult a lawyer. You can take the matter to the employment tribunal to claim damages and/or reclassification as a permanent contract.
• What are the time limits for acting? You have 5 years from the end of the contract to seek reclassification (for fixed-term contracts), and 2 years for claims for damages (Article L.1471-1 of the Labour Code).
• How much can I obtain? Amounts vary: generally between 1 and 6 months' salary, depending on the loss suffered (loss of opportunity, precariousness, etc.).
• Can my employer plead impossibility to make permanent? No, as the 1978 decision reminds. Impossibility does not exempt them from complying with the collective agreement.

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Do you find yourself in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →