French Labour Law

Fixed-Day Working Arrangements (Forfait Jours): What Happens When the Applicable Collective Agreement Changes? (Cass. soc., 25 March 2026, No. 24-22.129)

DAIRIA Law · 2026-09-01 · 9 min

Fixed-Day Working Arrangements (Forfait Jours): What Happens When the Applicable Collective Agreement Changes? (Cass. soc., 25 March 2026, No. 24-22.129)

The facts

For several years, a company had been applying a national collective bargaining agreement (convention collective nationale – CCN) that provided for the possibility of entering into individual fixed-day working arrangements over the year (forfait jours), with a ceiling set at 218 days worked. On this basis, several autonomous managerial employees (cadres) of the company signed individual 218-day forfait arrangements.

A managerial employee subject to this forfait jours challenged the application of that collective 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 fact came under a different collective agreement whose scope actually corresponded to the activity carried out.

However, this genuinely applicable collective agreement provided for a forfait jours ceiling below 218 days. The employee inferred that he had worked beyond the authorised contractual ceiling and accordingly claimed payment of back pay for the days worked in excess.

The lower courts ruled in the employee’s favour 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 forfait jours arrangement null and void, on the ground that it had been concluded on the basis of an inapplicable collective text.

The employer lodged an appeal before the Court of Cassation, challenging the outright annulment of the individual forfait arrangement. The employee filed a cross-appeal, considering that the financial consequences should have been greater.

The question submitted to the Court of Cassation was as follows: where it is held that a company’s activity falls within a collective agreement different from the one initially applied, and that this new agreement provides for a lower forfait jours ceiling, what becomes of the individual forfait jours arrangement concluded with the employee?

More precisely, the Court had to determine whether the individual forfait arrangement should be annulled in its entirety, or whether it could survive the change of applicable collective agreement, subject to an adjustment of the number of days worked to the ceiling provided for by the genuinely applicable agreement.

This question is of considerable practical interest, since many companies apply a collective agreement that does not correspond to their principal activity — sometimes in good faith, sometimes out of convenience. The consequences of such a change on current forfait arrangements can be financially very heavy.

The issue also concerns the intrinsic validity of the individual arrangement: does its validity require the collective agreement serving as its basis to be genuinely applicable, or is it sufficient that there exists a collective agreement authorising recourse to the forfait jours?

The Court of Cassation’s ruling

By a judgment of 25 March 2026 (No. 24-22.129), the Social Chamber of the Court of 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 agreement different from the one initially applied, and that agreement provides for a forfait jours with a lower ceiling, the individual forfait arrangement concluded between the parties remains valid, but the number of days worked must be reduced to the ceiling set by the genuinely applicable collective agreement.

In other words, the Court of Cassation declined to annul the individual forfait arrangement as a whole. It considered that the parties’ intention to have recourse to the forfait jours remains valid, provided that the genuinely applicable collective agreement also authorises this mechanism. The applicable day ceiling, however, is that of the collective agreement which actually corresponds to the company’s activity.

The Court criticised the Court of Appeal for having declared the individual forfait arrangement wholly null and void, whereas it was simply necessary to reduce the number of days to the applicable contractual ceiling. This solution makes it possible to preserve the forfait jours mechanism while ensuring compliance with the applicable collective provisions.

The practical consequence is as follows: the employee may claim payment for days worked beyond the ceiling of the genuinely applicable collective agreement, but he cannot obtain the reclassification of his working time into a standard hourly regime over the entire period. The forfait jours 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 complete annulment of the forfait.

Context: change or confirmation?

This judgment constitutes a significant jurisprudential contribution to forfait jours litigation, which has been steadily developing over the past several years.

Until now, the Court of Cassation’s case law on forfait jours had focused primarily on the conditions for the validity of the individual arrangement (the requirement of a collective agreement, sufficient provisions on monitoring workload, respect for the right to health and rest) and on the consequences of invalidating that arrangement (reversion to the ordinary hourly regime with payment of overtime).

The question of the change of applicable collective agreement, and its impact on the forfait jours, had not yet been settled so explicitly. Some Courts of Appeal had held the forfait to be wholly void, while others had adopted a more flexible approach by maintaining the forfait with an adjusted ceiling.

The Court of Cassation ruled in favour of the second, more pragmatic approach. It falls within 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 must be preferred.

This approach is consistent with the general trend of social case law, which increasingly seeks to strike a balance between the protection of employees’ rights and the legal predictability that companies require.

This solution may also be compared with the case law relating to the effects of the challenge (mise en cause) of a collective agreement (Article L. 2261-14 of the French Labour Code), which provides for a substitution mechanism rather than the abrupt disappearance of contractual benefits.

It should be noted, however, that this solution presupposes that the genuinely applicable collective agreement itself authorises recourse to the forfait jours. Otherwise, the individual forfait arrangement could not be maintained and would have to be annulled, with the usual consequences in terms of reclassification into the hourly regime.

Practical significance for employers

This judgment requires employers to exercise increased vigilance on several essential points.

1. Verify the genuinely applicable collective agreement

Determining the applicable collective agreement depends on the company’s principal activity. It is imperative to conduct a regular audit of this question, particularly where the activity evolves. The criteria for determination are:

  • The company’s actual principal activity (and not that declared at the time of registration);
  • The APE 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 the forfait jours arrangements

If there is any doubt as to the applicable collective agreement, it is advisable to ensure that the individual forfait jours arrangements comply with the lowest ceiling among the potentially applicable collective agreements. This precaution helps to limit financial exposure in the event of litigation.

3. Anticipate the financial consequences

Where the applicable collective agreement changes, days worked beyond the contractual ceiling will have to be remunerated with the corresponding increases. It is therefore essential to quantify this financial exposure as early as possible and to make provisions accordingly.

4. Secure the monitoring of workload

Independently of the question of the applicable collective agreement, the employer must ensure that the workload-monitoring arrangements provided for by the genuinely applicable collective agreement are actually implemented. A failure to monitor may render the forfait jours void, regardless 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 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 forfait jours?

If the genuinely applicable collective agreement does not provide for the possibility of recourse to the forfait jours, the individual forfait arrangement is void. The employee is then subject to the ordinary hourly regime (35 hours per week) and may claim payment of all overtime worked beyond that duration, within the three-year limitation period. The financial consequences can be considerable, including back pay, overtime premiums, mandatory rest compensation, as well as damages.

Can the employer regularise the situation by retroactively applying the correct collective agreement?

The application of the 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, the employer 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 forfait arrangements accordingly. For the past, any back pay due will have to be settled within the limits of the limitation period.

Can the employee refuse the adjustment of the number of days in his forfait?

The adjustment of the number of days results from the application of the genuinely applicable collective agreement. This is not a modification of the individual forfait arrangement requiring the employee’s consent, but the application of a mandatory contractual standard. The employee cannot therefore oppose the reduction of the number of days in his forfait, 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 face sanctions beyond back pay?

In addition to back pay for days worked beyond the contractual ceiling, the employer may be exposed to damages for unfair performance of the employment contract, if the courts consider that the application of the wrong collective agreement resulted from a deliberate intention. Furthermore, failure to comply with the applicable collective agreement may give rise to sanctions from the labour inspectorate and constitute the criminal offence of obstruction (délit d’entrave) where staff representatives are concerned. The URSSAF risk must also be taken into account, as back payment of social security contributions may be claimed on the sums due.

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