Fixed-Day Contracts (Forfait Jours) and Change of Applicable Collective Bargaining Agreement: What Employers Must Know (Cass. soc., 25 March 2026, No. 24-22.129)
The Facts
A company had for several years applied a national collective bargaining agreement (convention collective nationale, or CCN) allowing individual fixed-day agreements over the year (conventions individuelles de forfait en jours), with a cap set at 218 working days per year. On this basis, several autonomous managerial employees of the company had signed individual fixed-day agreements set at 218 days.
A managerial employee subject to this fixed-day arrangement challenged the application of that collective bargaining agreement to the company. He argued that the company’s actual and principal activity did not fall within the professional scope of the CCN initially applied, but in reality fell within another collective bargaining agreement whose scope effectively matched the activity carried out.
That genuinely applicable collective agreement, however, provided for a fixed-day cap of fewer than 218 days. The employee concluded that he had worked beyond the authorised contractual cap and accordingly claimed payment of back salary for the excess days worked.
The lower courts ruled in favour of the employee on the question of the applicable collective agreement: the company’s principal activity did indeed fall within a CCN different from the one initially applied. However, the Court of Appeal held that the change of collective agreement rendered the individual fixed-day agreement void, on the ground that it had been concluded on the basis of an inapplicable contractual text.
The employer appealed to the Cour de cassation (French Supreme Court), challenging the outright annulment of the individual fixed-day agreement. The employee filed a cross-appeal, arguing that the financial consequences should have been greater.
The Legal Issue
The question submitted to the Cour de cassation was the following: where it is held that a company’s activity falls within a collective bargaining agreement different from the one initially applied, and where that new agreement provides for a lower fixed-day cap, what becomes of the individual fixed-day agreement concluded with the employee?
More specifically, the Court had to determine whether the individual fixed-day agreement must be annulled in its entirety, or whether it can survive the change of applicable collective agreement, subject to an adjustment of the number of working days to the cap set by the genuinely applicable agreement.
This question is of considerable practical interest, because many companies apply a collective agreement that does not correspond to their principal activity — sometimes in good faith, sometimes for convenience. The consequences of such a change on existing fixed-day agreements can be financially very heavy.
The issue also concerns the intrinsic validity of the individual agreement: does its validity require that the collective agreement serving as its basis actually be applicable, or is it sufficient that there exists a collective agreement authorising recourse to the fixed-day arrangement?
The Cour de cassation’s Ruling
By a judgment of 25 March 2026 (No. 24-22.129), the Social Chamber of the Cour de cassation partially quashed the Court of Appeal’s decision.
The Supreme Court laid down a nuanced and pragmatic principle: where the company’s activity falls within a collective bargaining agreement different from the one initially applied, and where that agreement provides for a fixed-day arrangement with a lower cap, the individual fixed-day agreement concluded between the parties remains valid, but the number of working days must be reduced to the cap set by the genuinely applicable collective agreement.
In other words, the Cour de cassation refused to annul the individual fixed-day agreement as a whole. It held that the parties’ intention to use the fixed-day arrangement remains valid as long as the genuinely applicable collective agreement also authorises this mechanism. However, the applicable cap on days is that of the collective agreement that actually corresponds to the company’s activity.
The Court criticised the Court of Appeal for having declared the individual fixed-day agreement wholly void, when the appropriate course was simply to reduce the number of days to the applicable contractual cap. This solution preserves the fixed-day mechanism while guaranteeing compliance with the applicable contractual provisions.
The practical consequence is as follows: the employee may claim payment for days worked beyond the cap of the genuinely applicable collective agreement, but he cannot obtain the reclassification of his working time into the ordinary hourly regime for the entire period. The fixed-day arrangement subsists, but is capped differently.
This solution strikes a balance between the protection of the employee’s rights and the employer’s legal certainty, avoiding the disproportionate consequences of a full annulment of the fixed-day arrangement.
Context: Evolution or Confirmation?
This judgment represents a significant contribution to case law in fixed-day litigation, which has continued to grow over the past several years.
Until now, the Cour de cassation’s case law on fixed-day arrangements had mainly focused on the conditions of validity of the individual agreement (the need for a collective agreement, sufficient provisions on monitoring workload, respect for the right to health and rest) and on the consequences of the invalidation of that agreement (reversion to the ordinary hourly regime with payment of overtime).
The question of a change of applicable collective agreement, and its impact on the fixed-day arrangement, had not yet been settled so explicitly. Some courts of appeal had held the fixed-day arrangement wholly void, while others had adopted a more flexible approach by maintaining the arrangement with an adjusted cap.
The Cour de cassation ruled in favour of the second, more pragmatic approach. It follows a logic of preservation of legal acts: where it is possible to save an act by correcting it rather than annulling it, the least destructive solution should be preferred.
This approach is consistent with the general trend in social case law, which increasingly seeks to strike a balance between the protection of employees’ rights and the legal predictability that businesses need.
This solution can also be compared with the case law on the effects of the challenge to a collective agreement (Article L. 2261-14 of the French Labour Code), which provides for a mechanism of substitution rather than the abrupt disappearance of contractual benefits.
It should be noted, however, that this solution presupposes that the genuinely applicable collective agreement also authorises recourse to the fixed-day arrangement. Otherwise, the individual fixed-day agreement could not be maintained and would have to be annulled, with the classic consequences in terms of reclassification into the hourly regime.
Practical Implications for Employers
This judgment requires employers to exercise increased vigilance on several key points.
1. Verify the genuinely applicable collective agreement
The determination of the applicable collective agreement is based on the company’s principal activity. It is essential to conduct a regular audit of this question, particularly where the activity changes. The determining criteria are:
- The company’s actual principal activity (not the one declared at the time of registration);
- The APE code (business activity code), which is merely an indicator and does not bind the courts;
- The turnover generated by each activity in the case of multiple activities;
- The number of employees assigned to each activity.
2. Adapt fixed-day agreements
If there is any doubt as to the applicable collective agreement, it should be verified that the individual fixed-day agreements comply with the lowest cap among the potentially applicable collective agreements. This precaution helps limit financial exposure in the event of litigation.
3. Anticipate the financial consequences
In the event of a change of applicable collective agreement, days worked beyond the contractual cap will have to be paid with the corresponding increases. It is therefore essential to quantify this financial exposure as early as possible and to make provisions accordingly.
4. Secure workload monitoring
Independently of the question of the applicable collective agreement, the employer must ensure that the workload-monitoring mechanisms provided for by the genuinely applicable collective agreement are actually implemented. A failure to monitor may render the fixed-day arrangement void, irrespective of the number of days set.
5. Consult a specialist lawyer in case of doubt
The question of the applicable collective agreement is technically complex and its financial stakes are considerable. DAIRIA Avocats recommends that any company with doubts on this point promptly carry out a compliance audit, in order to regularise the situation before litigation arises.
FAQ
What happens if the genuinely applicable collective agreement does not provide for a fixed-day arrangement?
If the genuinely applicable collective agreement does not allow recourse to the fixed-day arrangement, the individual fixed-day agreement is void. The employee is then subject to the ordinary hourly regime (35 hours per week) and may claim payment for all overtime worked beyond that duration, within the limit of the three-year limitation period. The financial consequences can be considerable, including back salary, overtime increases, mandatory rest compensation, as well as damages.
Can the employer regularise the situation by retroactively applying the correct collective agreement?
The application of a collective agreement is a question of fact, determined by the company’s principal activity. The employer cannot retroactively choose to apply one agreement or another. However, it may regularise the situation for the future by henceforth applying the collective agreement corresponding to its actual activity, by informing employees and staff representatives, and by adapting the individual fixed-day agreements accordingly. For the past, any back salary due must be settled within the limits of the limitation period.
Can the employee refuse the adjustment of the number of days under his fixed-day arrangement?
The adjustment of the number of days results from the application of the genuinely applicable collective agreement. It is not a modification of the individual fixed-day agreement requiring the employee’s consent, but the application of a mandatory contractual norm. The employee therefore cannot object to the reduction in the number of days under his arrangement, which is moreover favourable to him. However, if the adjustment were to lead to a reduction in remuneration, the employee’s consent would be required, as remuneration is an essential element of the employment contract.
Does the employer risk sanctions beyond the back salary?
Beyond the back salary for days worked above the contractual cap, the employer may be exposed to damages for unfair performance of the employment contract, if the courts find that the application of the wrong collective agreement resulted from deliberate intent. Furthermore, failure to comply with the applicable collective agreement may give rise to sanctions by the labour inspectorate and constitute the criminal offence of obstruction (délit d’entrave) where staff representatives are concerned. URSSAF risk (social security contributions authority) must also be taken into account, as back contributions may be claimed on the amounts due.