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There is an observation that resurfaces constantly and tirelessly in our country: although no one is supposed to ignore the law, what no one ignores today is that the complexity and instability of labor legislation seem to have no limits.
Complexity and Instability of Labor Legislation
Initially set for 1 January, but postponed due to significant and foreseeable difficulties, the entry into force of a minimum duration of part-time work took place a few years ago.
Considered by the law of June 14, 2013 on job security, such a measure, consisting in establishing a minimum weekly working time of twenty-four hours, really seems to be an ill-advised idea. Further complicating and rigidifying employment conditions in France, it is easy to predict, even without a first assessment, that the real effect will be far from that initially anticipated, sadly continuing the trend of a government apparently incapable of drawing lessons from past mistakes.
Admittedly, the desire to systematically link part-time work to the employee’s choice is undeniably laudable, because it pursues a fundamental objective of combating precariousness. However, hastily constructing a framework with multiple gaps is immediately much less defensible, since the resulting doubts will harm both employers, who will certainly find it difficult to clearly understand their new rights and obligations, and employees, who will directly suffer the consequences of the concerns and uncertainties of the former.
Some could perhaps argue that the legislator was not guilty of excessive ideological rigidity with such a reform, because he did not omit to associate the objective of security with that of flexibility, thus coveting the symbol of French-style “flexi-security” capable of offering him a slight respite in the polls.
And it is true that the principle is very far from taking on an absolute scope – and that is very fortunate:
- Firstly, individual employers will not be affected by such a period, thanks to the application of article L 221-2 of the Labor Code;
- Secondly, any employee will have the right to make a written and reasoned request aimed at determining a weekly working time of less than twenty-four hours, in order to cope with “personal constraints” or to combine several activities;
- Third, students will automatically be excluded from the scope of the system;
- Fourthly, the professional branches have the possibility of concluding derogatory agreements.
But here it is: the extent of such derogations highlights not only the fact that the need to establish a threshold of this type was perhaps not absolute; combined with the innumerable flaws from which the text suffers, it purely and simply announces the worst.
Among these imperfections, several immediately caught our attention, although the list is not exhaustive.
First of all, no clarification has been provided on the subject of the “personal constraints” that an employee can invoke, and it is very likely that, concerning facts relating to the private life of such an actor, the employer will have to choose between exposing himself to the risk of being accused of an invasion of the privacy of his staff or derogating from minimum working hours on the basis of fanciful or non-existent criteria.
Then, what happens when an employee invokes the disappearance of said constraints? Does the employer have an immediate obligation, regardless of their own ability, to extend the working time of the affected individual to twenty-four hours a week, or could they simply consider the employee’s request within the framework of the priority right of article L3123-8 of the Labor Code?
Last but not least, the question also arises as to what working time should be taken into account when replacing an employee who, at his request, has a working time of less than twenty-four hours. The risk is a priori high for the employer, because one can easily imagine that the replacement, recruited by means of a fixed-term contract for a longer period than that of the incumbent, plays the card of the request for requalification of the contract into a permanent contract, arguing that the replacement of the absent employee was only a fictitious reason for resorting to the fixed-term contract.
In conclusion, you will have understood: the remedy, if it can indeed be qualified as such, is clearly worse than the disease. Employers, great vigilance will be necessary in the months to come.
DAMY law firm , May 30, 2022
