France: Imposing a Trial Period is Not Justified if the Employee has Already Worked for the Company in a Self-employed Capacity
On 29th April 2025, the French Supreme Court ruled that a company may not be able to impose a trial period if it has already been able to ascertain the employee’s professional skills regardless of the legal structure of the previous working relationship. In the present case, the employee claimed that they had held the same functions previously as a self-employed consultant and, therefore, could not be subject to a trial period.
Companies can impose a trial period upon hire. The duration of such trial period is set by the French Labour Code or by the applicable Collective Bargaining Agreement. During such trial period, both the Company and the employee can terminate the employment relationship without having to provide any reason. This trial period aims to allow the company to check if the employee has the necessary professional skills. This new caselaw is interesting as it states for the first time that the courts must check if the company was able to test such skills even if this was outside an employment relationship. It is not yet clear whether the French Supreme Court considers that this only applies when the employee was previously a self-employed consultant or if it could be considered to apply in other cases such as employees being hired after having worked for a company under a wage portage solution.
Key Action Points for Human Resources and In-House Counsel
Ensure you check if a new employee has already worked for the company in another capacity when drafting their employment contract, and if so, seek advice before terminating their contract during their trial period.
