The French Connection

UK businesses posting employees across the Channel need to be aware of all the legal issues to avoid potential breaches of the complex French labour laws, says Emmanuelle Ries.

The Posting of Workers Directive (Directive 96/71EC) works in conjunction with both international conventions and the provisions of employment law in force in each member state to protect the employment rights of workers who are temporarily posted by their employer in another member state.

The directive requires that where a European Union member state has certain minimum terms and conditions of employment, these must also apply to workers posted temporarily by their employer to work in that state. The directive does not prevent workers benefiting from minimum employment protection rights which are more favourable in the state from which they are posted. In other words, while benefiting from employment protection rights in the member state they are posted to, posted workers do not necessarily surrender ‘better’ employment protection rights from their ‘home’ state. So for example, there might be times when it is more advantageous for a UK employee temporarily posted to the France to invoke the provisions of English employment law and others where it may be more advantageous to bring a claim in France.

French employment law
British companies setting up with operations in France will normally be faced with either seconding an employee to France or recruiting a local. Either way, the British employer will at this point become involved with French employment law.

An employee seconded by a British company to work in France (even for a short period of time and if he remains on a British contract) will be able to claim in the Employment Tribunal in France against his British employer. To avoid becoming acquainted with the French employment tribunals the employer must be mindful of the mandatory provisions laid down by the French Code du Travail and of the Convention Collective, particularly in terms of pay, working time and working conditions. The mandatory provisions of French employment law will apply to protect the employee because the employee will be physically based in France.
A secondment in France is called a ‘détachement’. Points to watch out for are:

1. The compulsory ‘pre-declaration’

Before a seconded employee starts work in France, the employer must send a pre secondment declaration ( to the direction départementale du travail (local work directorate) of the place where the workers will be posted. This is a form to be completed in French and must state the number of workers the employer will be sending to France, their names, their remuneration, their working time and where they will be living. If the employer does not send this ‘pre-declaration’ form, it may be fined 135 euros.

2. Non EEA nationals

The ‘pre-declaration’ will ask the employer to list the names of the employees to be to sent to France and to state their nationality. Normally, third country nationals (from outside the EU, EEA and Switzerland) regularly employed by a company based in the EU, EEA or the Swiss Confederation may be posted to France without having to obtain a work authorisation if they have an authorisation to live and work in the country where their employer is based. The UK employer may need to show a copy of the employees’ authorisation to work in the UK to the French immigration authorities.

3. Collective agreements and conventions

Employees seconded to France will be able to claim that the provisions of the relevant convention collective applying to French workers in their industry apply to them. The employer should therefore seek advice on the terms of the applicable convention collective in its industry/sector of activity in France.

4. Working time and holidays

In France, the maximum legal working time is ten hours a day and 48 hours in the same week. That however is with overtime as the 35-hour week (although much relaxed recently) still applies in many sectors. French regulations on annual paid holidays (assessed on the basis of the stay in France), leave for family occasions, maternity leave and paternity leave will apply to seconded employees. However, the regulations of the Code du Travail on unpaid leave and on the compte épargne temps (time savings account) do not apply to seconded employees.

5. Minimum wage

Since 1 July 2009, the minimum wage in France is 8.82 Euros gross per hour (which amounts to a monthly gross minimum wage of Euros 1,337.70 for a 35-hour working week). Employees on secondment must be paid at least the minimum wage.

Allowances specific to secondment (expatriation benefit for example) are part of the minimum wage. However, benefits covering excess costs incurred during the secondment (travel or accommodation expenses, for example) are not considered in the calculation of the minimum wage and must be reimbursed by employers.

6. Payroll

When the posting in France exceeds one month, posted employees must be paid a monthly salary, and receive a payslip (or any equivalent document), translated into French and indicating the following information:

  • salary due (including overtime) (in euros);
  • working hours and periods;
  • leave and public holidays;
  • conditions of liability to weather risk and paid leave funds; and
  • name of the applicable collective convention.

Points to look out for when seconding an employee abroad:

  1. Employment contract: in a secondment situation, the employee’s employment contract with the employer will remain in place. However, the employer must bear in mind the Posting of Workers Directive which will ensure that the employee will also benefit from the minimum statutory employment protection rights in the country he or she is seconded to and seek legal advice from a local employment lawyer.
  2. Administrative formalities and tax reliefs: Administrative formalities must be complied with, no matter how short the secondment period is, to avoid protracted dealings with the authorities. It is worth seeking legal advice before the secondment begins. It is also worth seeking local legal advice on tax reliefs available during the secondment, particularly if the secondment is for a short period of time (less than six months).
  3. Termination: upon termination of the secondment, the employee will be expecting to return to his original job. If that job disappears during the period of secondment, remember to consult with the employee as part of the redundancy consultation procedure. At that point it might be worth offering that the employee continues with his role abroad but offer that this is under a local contract.

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances.

© , September 2009

Please contact:

Emmanuelle Ries - Partner

DD +44 (0)20 7553 9938

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