Business Contracts

The classification as a contract of employment is often sought, as it enables employees to benefit from the protection of social legislation. While employment contracts and contracts for services have in common the performance of work for others in return for payment, employment contracts are distinguished from contracts for services by the subordinate relationship they create between employer and …

Employment contract

The classification as a contract of employment is often sought, as it enables employees to benefit from the protection of social legislation. While employment contracts and contracts for services have in common the performance of work for others in return for payment, employment contracts are distinguished from contracts for services by the subordinate relationship they create between employer and employee . Whereas a contract of employment is characterized by the commitment of one person to work  for and under the direction of another, in return for remuneration  , a contract for services is defined as the agreement by which one person entrusts another with the independent performance of a work, in return for an agreed price, without conferring on the latter any power of representation . Thus, when one party to a contract undertakes to another to perform a specific task in return for remuneration, without there being any legal relationship of subordination, the contract is classified as a contract for services  and not as a contract of employment.

Legal subordination is the distinguishing criterion of the employment contract, and breaks down into the employer's power to give orders and instructions, to monitor their execution and compliance, and to sanction non-compliance. This power of direction, control and sanction on the part of the employer, which marks the existence of legal subordination, can be seen in the various constraints or obligations imposed by the employer (workplace, working hours, supply of equipment, provision of personnel, integration into an organized service, etc.), which are merely indicators of a contract of employment . Legal subordination cannot be characterized either by a situation of dependence, or by a relationship of trust, or even of close collaboration or coordination, between the head of an undertaking and a service provider who has freely consented to his personal taking charge, within the framework of a contractual relationship of a commercial nature, of the management of legal disputes which the undertaking in question wishes to outsource .

As a rule, it is up to the person asserting the existence of an employment contract to establish its status. As the court's task is to assess this body of evidence, the existence of an employment contract does not depend on the expressed will of the parties, nor on the name they have given to their agreement, but on the de facto conditions under which the workers' activity is carried out . Whatever the wording used by the parties, a contract can always be reclassified as a contract of employment if the conditions under which the work is performed and organized demonstrate that a salaried employment relationship has been established between the parties.

An individual entrusted by the owner of a house, who is also a contractor, with excavation work for the construction of a garage, is bound by an employment contract rather than a contract for services, insofar as he has not retained his independence in carrying out the work, since the powers of direction and control over the operation of his digger have been transferred to the owner, who acknowledges having given him instructions . On the other hand, a highly qualified person who, in return for weekly fixed payments, without any breakdown or reference to the price per hour, the time spent, the reimbursement of materials or the breakdown of social security contributions, and without any payslips, has been entrusted with the management of a worksite, while enjoying full initiative and independence in the general conduct of the work, is bound to his co-contractor by a contract for services, and not for the hire of services, insofar as he has made a commitment to perform specific work in return for remuneration, in the absence of a legal relationship of subordination . Similarly, a bricklayer affiliated as an employer with the French social security fund (Urssaf), who, calling himself an entrepreneur, was commissioned, under an agreement concluded for a fixed price and bearing the words “the client” and “the entrepreneur”, to build a villa on behalf of and on the land of his co-contractor, who had furnished him with plans and materials, is bound to the latter by a contract for services, insofar as by using his own site equipment and the plans in question without reservation, he has retained his independence in carrying out the work .

CA Nîmes, 30 June 2022, LawLex202200004284JBJ.

CA Riom, 13 October 2020, LawLex202200004780JBJ, noting that the provision of work can be for the most diverse tasks (manual, intellectual, artistic works etc.), in all business sectors.

Cass. 3e civ, 2 October 1979, LawLex202200008824JBJ.

CA Riom, 13 October 2020, LawLex202200004780JBJ, cited above, specifying that remuneration refers to the consideration for the provision of work, regardless of whether it is paid in money or in kind, and whether it is calculated on a time, piecework or on a commission basis.

Cass. 3e civ, 17 July 1972, LawLex202200003848JBJ.

CA Riom, 13 October 2020, LawLex202200004780JBJ; 1 March 2022, LawLex202200004816JBJ; CA Nîmes, 30 June 2022, LawLex202200004284JBJ.

CA Riom, 1 March 2022, LawLex202200004816JBJ, thus refusing to set aside the rebuttable presumption of non-salaried status of self-employed workers and corporate officers in favor of the plaintiff.

CA Riom, 1 March 2022, LawLex202200004816JBJ.

Cass. 3e civ, 24 June 1992, LawLex202200004814JBJ.

Cass. 3e civ, 17 July 1972, LawLex202200003848JBJ, cited above.

Business Contracts

288. Employment contract

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

288. Employment contract

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise