Professionalisation Contract: Early Termination Prohibited Without Gross Misconduct or Force Majeure

Imagine: you own a small building in Sotteville-lès-Rouen, and you hire an apprentice on a professionalisation contract to manage your holiday rental. Everything goes well until the day the training body permanently excludes him. You think you can terminate the contract without consequences? Think again. The Court of Cassation, in a judgment of 31 October 2012, ruled: without gross misconduct or force majeure, no early termination. This decision, concerning an employee of Radio France, has implications far beyond the world of broadcasting.

But what does this actually change for you, as an owner, tenant or property professional? On the surface, it is about employment law. In reality, fixed-term contracts (CDDs) are common in property: caretaking, concierge, or professional training contracts. This case law sets a golden rule: the employer cannot rely on a third party to justify a termination.

In other words, if you sign a fixed-term contract with an employee, you must assume the risks of performance, unless the situation is truly unforeseeable and irresistible. The Court of Cassation overturned a decision of the Paris Court of Appeal which had validated the suspension of the contract after the employee's exclusion from the journalism school. For the High Court, the employer should have sought alternative training, and the impossibility of finding a solution does not release him from his obligations.

The Facts: A Story That Happens Every Day

Ms X, a trainee journalist, signs a fixed-term professionalisation contract with the company ESJ Médias Montpellier, a subsidiary of the École supérieure de journalisme de Lille. The contract provides for theoretical training and practical work at Radio France. But on 7 August 2006, Radio France permanently excludes Ms X from its premises, for reasons not specified in the judgment. The employer, ESJ Médias, then informs the employee that the contract cannot continue due to the lack of training.

Ms X brings the case before the Paris Employment Tribunal to obtain payment of her salary until the end of the contract. She is unsuccessful at first instance, but the Paris Court of Appeal partially rules in her favour: it orders the employer to pay her damages, but considers that the contract was suspended, not terminated. Dissatisfied, the employer appeals to the Court of Cassation.

The Court of Cassation quashes the appeal judgment. It recalls that early termination of a fixed-term professionalisation contract can only occur in the event of gross misconduct or force majeure. In this case, the employee's exclusion from the training body does not constitute a case of force majeure for the employer, as he could have sought other training. The impossibility of finding a solution does not release him.

The Reasoning of the Court — Analysed

The Court of Cassation relies on the provisions of the Labour Code relating to the professionalisation contract (former Articles L. 6325-1 et seq.). It recalls that the professionalisation contract is a fixed-term contract, subject to the termination rules for fixed-term contracts. A fixed-term contract can only be terminated before its term in three cases: gross misconduct, force majeure, or agreement of the parties.

In clear terms, force majeure is an event that is unforeseeable, irresistible and external to the parties. A storm, a flood, a fire. But the exclusion of an employee by a training body is not external to the employer: it is a risk inherent in the organisation of training. The employer should have provided a fallback solution, such as alternative training.

The Court of Appeal had referred to a 'non-culpable impossibility' for the employer to find alternative training. But the Court of Cassation reframes: an impossibility, even non-culpable, is not enough. A characterised case of force majeure is required. In other words, mere difficulty in performance does not allow the contract to be terminated.

What few people know is that this solution is consistent: the Court of Cassation applies the same strictness to all fixed-term contracts. In my practice, I have come across cases where employers thought they could terminate a fixed-term contract due to a drop in activity. That is not possible. Here, the decision confirms and tightens the rule: even the employee's exclusion from training is not sufficient.

What This Means for You — Practically

For landlord owners: if you hire a caretaker or concierge on a fixed-term contract (e.g., to cover maternity leave), you cannot dismiss them because the management company removes the management from you. You must honour the contract until its term, except in cases of gross misconduct (theft, assault) or force majeure (destruction of the building).

For tenants: if you are an employee on a professionalisation contract and your employer tries to terminate your contract because the school excludes you, know that you can challenge it. The employer is obliged to provide you with work and training. If he does not, he owes you your salary until the term.

Let's take a concrete example in Fécamp: a property agent hires an apprentice on a professionalisation contract for 12 months. After 6 months, the apprenticeship school closes. The employer thinks he can terminate the contract. According to this case law, he cannot. He must seek alternative training, and if he cannot find any, he must still pay the salary until the term.

If you are in this situation, you should: 1) check whether the termination is motivated by gross misconduct or force majeure; 2) challenge it by registered letter; 3) bring the case before the Employment Tribunal within 12 months of the termination. The amounts at stake can be significant: 12 months' salary for an unperformed contract.

Four Tips to Avoid This Type of Dispute

• Draft a solid contract: include a clause stating that the employer undertakes to provide training, but if the body closes, he will endeavour to find another. This will not exempt you from paying, but will show your good faith.
• Anticipate risks: before signing a fixed-term contract, list possible training options. If something goes wrong, you will have a Plan B. Do not rely solely on one body.
• In case of exclusion: do not terminate the contract immediately. Convene the employee, hear them, and actively seek an alternative solution. Any hasty decision will expose you to damages.
• Document everything: keep records of your searches for alternative training. If a judge criticises you for not doing enough, your written evidence will be invaluable.

Further Reading: Related Case Law and Developments

This decision is part of consistent case law from the Court of Cassation on fixed-term contracts. For example, in a judgment of 9 February 2011 (no. 09-72.502), it had already held that disagreement between the parties does not constitute a case of force majeure. More recently, in 2018 (no. 16-25.677), it extended this rule to apprenticeship contracts.

The trend is clear: judges protect the employee on a fixed-term contract by limiting the grounds for termination. However, note: gross misconduct remains a valid ground. But it must be proven, not merely invoked.

For the future, could this strictness extend to permanent employment contracts in certain sectors? Perhaps not. But in property, where fixed-term contracts are common (caretaking, seasonal workers), this decision is a safeguard for employees and a warning for employers.

Key Points to Remember

FAQ

• Can I terminate a professionalisation contract if the school closes? No, unless the closure is unforeseeable and irresistible (force majeure). The employer must seek alternative training.
• What if my employer dismisses me without valid reason? Bring the case before the Employment Tribunal within 12 months. You can obtain payment of salary until the end of the contract, plus damages.
• What is gross misconduct? Conduct that makes it impossible to keep the employee in the company: theft, violence, serious insubordination.
• What are the time limits for action? You have 12 months from the termination to bring the case before the Employment Tribunal. After that, you are time-barred.
• Can the employer invoke force majeure for an exclusion? No, exclusion is not an event external to the employer. He should have foreseen this possibility.

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