For a day-rate agreement (forfait en jours) to apply to an employee, the underlying collective working-time agreement must be individually accepted by the employee. The Court of Cassation has confirmed that a generic document, however formal, is not sufficient to evidence that individual consent.
In this case, an employee hired as a sales assistant in a sports retail chain had received a document entitled “charte individuelle” (individual charter). The charter consisted of a list of the provisions of the company-wide working-time agreement then in force, including a maximum of 218 working days per year (including the journée de solidarité, the unpaid working day France introduced to fund care for the elderly and dependent). It made no reference whatsoever to the employee’s individual contractual situation. The employee had signed the document and written ‘Agreed’ on it.
The Court of Cassation held that such a document could not constitute the individual day-rate agreement required to subject the employee to the forfait en jours. By merely reproducing the collective rules without anchoring them in the employee’s specific contractual relationship, it failed to establish the consent required for the day-rate arrangement to be enforceable against her.
The practical consequence is that, to set up a forfait en jours validly, employers must put in place a clearly individualised written agreement – typically a contractual clause or a specific addendum – that refers to the employee’s role and explicitly commits the employee to the day-rate arrangement. A template-style charter merely repeating collective terms will not suffice.
