French Labour Law

Waiting Period Between Two Fixed-Term Contracts (CDD) in France: Rules and Exceptions for Employers

DAIRIA Law · Published · 7 min

Waiting Period Between Two Fixed-Term Contracts (CDD) in France: Rules and Exceptions for Employers

Between two fixed-term contracts (“contrat à durée déterminée”, or CDD) concluded for the same position, your company must in principle observe a waiting period (“délai de carence”) before entering into a new fixed-term contract. However, Article L.1244-4 of the French Labour Code provides for several exceptions in which this period does not apply: replacement of an absent employee, seasonal employment, so-called usage-based contracts (“contrats d’usage”), early termination at the employee’s initiative, refusal by the employee to renew, and urgent safety-related work, among others.

Understanding how the principle interacts with its exceptions is essential to avoid the reclassification of a CDD into an open-ended contract (“contrat à durée indéterminée”, or CDI). DAIRIA Avocats advises HR directors and executives of mid-sized companies in securing their policies for the use of fixed-term contracts.

The Principle of the Waiting Period Between Two Fixed-Term Contracts

When a CDD ends for a given position, your company cannot immediately enter into a new CDD for the same position. A waiting time, known as the délai de carence, must elapse.

How to Calculate the Duration of the Waiting Period

The duration of the waiting period is determined by an extended branch collective agreement. In the absence of an agreement, Article L.1244-3-1 of the French Labour Code sets out the default rules:

  • One-third of the duration of the expired contract, including any renewal, if the initial contract (including renewal) was at least 14 days;
  • Half of the duration of the expired contract, including any renewal, if that contract was less than 14 days.

The waiting period is counted in days on which the relevant company is open for business, in accordance with the aforementioned Article L.1244-3-1.

The Scope: “the Same Position”

The waiting period is assessed solely with regard to the position, not the employee. If you conclude a new CDD for a different position, the waiting period does not apply. The concept of the “same position” refers to a position involving the same tasks, regardless of the person hired. This assessment, which is often a source of litigation, warrants a careful review of the job description and the duties actually assigned.

Exceptions to the Waiting Period (Article L.1244-4 of the French Labour Code)

Article L.1244-4-1 of the French Labour Code provides an exhaustive list of the situations in which the waiting period does not apply. These exceptions allow a new CDD to be concluded for the same position without observing any waiting time.

1. Replacement of an Absent Employee

Where the CDD is concluded to cover the replacement of a temporarily absent employee or one whose employment contract is suspended, and where that absence continues or a new employee must be replaced, no waiting period is required. This is a common scenario for successive replacements due to sick leave, maternity leave or parental leave.

2. Urgent Work Required by Safety Measures

CDDs concluded to carry out urgent work whose immediate performance is necessary to prevent imminent accidents, organise rescue measures or repair equipment deficiencies are exempt from the waiting period.

3. Seasonal Employment and Usage-Based Contracts

Seasonal employment as well as contracts concluded in sectors of activity where it is customary not to use open-ended contracts (usage-based contracts, or “contrats d’usage”) are not subject to the waiting period. The list of these sectors is set by decree or by collective agreement (hospitality and catering, entertainment, removals, etc.).

4. Replacement of a Business Owner or Operator

A CDD concluded to replace the head of a craft, industrial or commercial business, a person practising a liberal profession, their spouse participating in the business, or the head of an agricultural operation, is not subject to the waiting period.

5. Early Termination at the Employee’s Initiative

Where the previous CDD was terminated early by the employee, your company may conclude a new CDD for the same position without waiting. Since the termination was at the employee’s initiative, the protective rationale behind the waiting period does not apply.

6. Employee’s Refusal to Renew the Contract

If the employee refuses to renew their CDD, no waiting period is required for the duration of the unrenewed contract. It is your responsibility to retain proof of this refusal (letter, refused amendment) in order to justify the exemption in the event of an inspection.

What Your Company Risks in the Event of Non-Compliance

Failure to observe the waiting period, outside of the statutory exceptions, exposes your company to a major risk: the reclassification of the CDD into an open-ended contract (CDI).

The succession of CDDs for the same position without observing the waiting period may be construed by the courts as a means of permanently filling a job linked to the normal and ongoing activity of the company, in breach of Article L.1242-1 of the French Labour Code.

The financial consequences are significant:

  • Reclassification into a CDI with reconstitution of seniority from the first contract;
  • A reclassification indemnity of at least one month’s salary, as provided by the Labour Code;
  • Where applicable, termination indemnities if the relationship is then reclassified as a dismissal without genuine and serious cause.

Mapping your use of CDDs and auditing the positions concerned help prevent this risk. DAIRIA Avocats acts to secure your practices and document the applicable exceptions.

Best Practices for Securing Successive Use of Fixed-Term Contracts

To make your management of CDDs reliable and protect yourself against reclassification, several reflexes are essential:

  • Check the branch collective agreement: it may set a specific waiting period or provide additional exceptions that prevail over the default rules.
  • Document the grounds for using each CDD in the written contract, in accordance with the requirements of the Labour Code.
  • Retain supporting evidence for the exceptions: proof of the replaced employee’s absence, refusal to renew, seasonal nature of the employment.
  • Keep records of the organisation of positions in order to demonstrate, where applicable, that a new CDD relates to a distinct position.
  • Carry out periodic audits of successive CDDs to identify positions exposed to a reclassification risk.

A clear internal procedure, shared between the HR department and operational managers, considerably reduces litigation.

Frequently Asked Questions

Does the waiting period apply when a different employee is hired for the same position?

Yes. The waiting period is assessed with regard to the position, not the employee. If your company concludes a new CDD for the same position, the waiting period is in principle due, even with a different employee, unless one of the exceptions under Article L.1244-4-1 of the French Labour Code applies.

Is a waiting period required between two replacement CDDs?

No, where the new CDD is intended to replace an absent employee or one whose contract is suspended. Replacement is one of the express exceptions to the waiting period. However, each contract must precisely state the name and qualification of the replaced employee.

How is the waiting period calculated in the absence of a branch agreement?

In the absence of an agreement, Article L.1244-3-1 of the French Labour Code provides for a period equal to one-third of the duration of the expired contract (including renewal) if that contract was at least 14 days, or half of that duration if it was less than 14 days. The count is made in days on which the company is open for business.

Does an employee who refuses renewal give rise to an exemption from the waiting period?

Yes. The employee’s refusal to renew allows a new CDD to be concluded for the same position without observing the waiting period, for the duration of the unrenewed contract. It is essential to retain written proof of this refusal in order to justify the exemption.

Can a collective agreement modify the waiting period?

Yes. An extended branch collective agreement may set the rules for calculating the waiting period and determine, where applicable, the cases of exemption. These contractual provisions prevail over the default rules of the Labour Code. Always check your branch before any successive use of CDDs.

Secure Your Use of Fixed-Term Contracts with DAIRIA Avocats

Managing successive CDDs and applying the exceptions to the waiting period constitute a high litigation-risk area for mid-sized companies. An error of assessment as to the concept of the “same position” or the grounds for use may lead to costly reclassification.

DAIRIA Avocats advises HR directors and executives in auditing their practices, drafting secure fixed-term contracts and building compliant internal procedures. Our involvement aims to document each exemption and to make your choices regarding the use of CDDs provable in the event of an inspection or employment tribunal dispute.

Contact the firm for a compliance audit of your use of fixed-term contracts.

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