1.1.1.1 A Codified Legislation Characterised by Strong State Interventionism and a Plurality of Sources

Codified labour law2 brings together laws, regulations and decrees covering virtually every aspect of the employment relationship.3 It is a law that stems from strong State interventionism, with the law being the primary source of workers’ rights. However, it is made up of various sources subject to the principle of hierarchy and public social order. In addition to the law (including the Constitution and the Labour Code), the other sources of law are: collective labour agreements internal regulations, custom and the employment contract. These sources are governed by the principle of hierarchy, according to which an inferior source cannot, in principle, derogate—in peius—from a superior source unless authorised by a special law. The French legal system is monistic. Consequently, as soon as international standards are ratified, they are automatically incorporated into the domestic legal system. France (the second-largest ILO member state in terms of conventions ratified—130 out of 191, including 10 out of 11 fundamental conventions) has not ratified International Convention 189 on domestic work. It has just ratified Convention 190 on violence and harassment at work.

1.1.1.2 A Limited Personal Scope and Variable Geometry

It is a legislation with a limited personal scope.4 It applies to paid employment relationships. Certain parts of the Labour Code are also applicable to staff of public legal entities employed under private law conditions. Public law contractual employees and civil servants are governed by civil service law (see below). This will therefore be the case for workers employed by a public health and social care establishment (EPHAD for the elderly, for example). All other care workers are governed by the Labour Code and the collective agreements to which their company is subject.

It’s a binary legislation with variable geometry. French employment law operates on the basis of a binary distinction between salaried work and self-employment. There is no 3rd category or third status. To this end, labour law governs the relationships arising from an employment contract between employers and employees, whose position of weakness/inequality calls for a specific regime. The purpose of employment law is therefore to provide a framework for the relationship of legal subordination between an employee and an employer, by limiting the imbalance between the parties to the employment contract—while legitimising the employer’s powers, in the name of freedom of enterprise and property rights in particular.

There is, however, a Part VII of the Labour Code devoted to certain professions and activities, including those of domestic employees and personal services in Titles II and III of Book II of Part VII respectively. Title III defines personal services as follows: “childcare; assistance for the elderly, disabled or other people who need personal help in their own home or mobility assistance in the local environment to help them stay at home”. The Borloo law clarified and extended the scope of personal services by defining an exhaustive list of 21 activities set out in the decree of 29 December 2005. The main aim of the Borloo law was to create jobs while improving working conditions and employee qualifications in the personal services sector, while simplifying access to the services on offer (support and development of national brands to make it easier to match supply and demand and creation of the national personal services agency; simplification of the approval procedure, etc.) and the creation of new services and tax benefits (CESU). The Borloo law has also encouraged the social partners to open negotiations on working conditions and access to vocational training (job descriptions, recognition of new jobs, contribution to vocational training, acceleration of VAE, etc.).

Associations that place workers with individuals who are employers and carry out administrative formalities and social security and tax declarations relating to the employment of these workers on behalf of these individuals only act as agents, as the individuals are the sole employers of the workers.5 These organisations must obtain authorisation from the competent administrative authority to carry out these provision of services activities; they must carry out this activity on an exclusive basis. The system of compulsory authorisation for agent organisations created by law no. 2002-2 of 2 January 2002 was simplified by law no. 2005-841 of 26 July 2005 on the development of personal services and various measures to promote social cohesion (JO no. 173 of 27 July 2005), known as the Borloo law. Following this law, article 4 of Ordinance no. 2005-1477 of 1st December 2005 relating to the right of option, various provisions relating to procedures for admission to social assistance and social and medico-social establishments and services puts an end to the procedures relating to the quality approval (Labour Code) and authorisation required of home help service providers (assistance for families, the elderly and the disabled: CASF). From now on, these services will have the right to choose between the two systems, and authorisation will be equivalent to approval if the condition of exclusive activity is met and certified by the President of the General Council. This relaxation of the authorisation system has the effect of distorting the analysis of the home help sector by increasing competition between the various structures involved in the care sector, i.e. associations, for-profit companies and direct employment by private individuals.6

The rules on minimum wage apply to home workers employed by private individuals; this is not the case for the legal rules on working hours (including the definition of actual work) covered by the national collective agreement for private individuals and home workers. The only applicable rules of the Labour Code are those relating to moral harassment, May Day, paid leave and leave for family events, family solidarity and caregiving, medical surveillance, the employer’s safety obligations and undeclared work. In addition, Title IV of this same section of the Labour Code applies to self-employed workers using an electronic contact platform. In reality, apart from the reminder of the right to freedom of association and trade union action, the text excludes these workers from the protection of employment law.7

Individual disputes arising from employment contracts are settled by a specialised court, the Conseil des prud’hommes (industrial tribunal) in the first instance, and then by the social divisions before the Court of Appeal and the Court of Cassation. The Conseil des prud’hommes is a court made up of lay judges elected by their peers every 4 years on a trade union list. It is made up of sections, one of which, called “Various activities”, will receive claims from workers and employers in the care sector.

1.1.1.3 A Historically Imperative and Protective Legislation Now Deconstructed in Favour of Company’s Interests

In very broad terms, after a long period of construction and continuous progress generally in favour of workers (from 1841 to 1981), labour law went through a period of extension of the role of collective bargaining to company level (Auroux laws 1981-2000) and at the same time of flexibilisation of working and employment conditions (1990-2000) to end up undergoing a period of deconstruction (2002 to the present day) during which several legal reforms, in the name of modernising the labour market and reducing the cost of labour and social expenditure, have reduced public order and reduced the areas in which the law is imperative, leaving room for collective agreements at company and/or branch level. This process of deregulation/re-regulation has not been without social conflict and massive resistance organised as a unit by the trade unions (2006 against the CPE, 2016 against the El Khomri law, 2017 against the Macron ordinances, 2022 against pension reform). One of the areas hardest hit by this process is undoubtedly that of working hours and working time (laws of 20 August 2008 and 8 August 2016).

Not a year has gone by since 2013 without a major reform systematically affecting the system of sources of labour law in an inexorable trend towards strengthening conventional law at the expense of statutory law, with an irreversible trend towards decentralising collective bargaining to company and establishment level.8 What can be said of this legislative activism except that it has succeeded, step by step, in imposing a reversal of sources within conventional law, while the law remains the determining factor in this rearrangement of sources. The ambition of recent governments is to renovate labour law. The Copernican revolution announced by President Macron is in fact the end of a long transformation process begun in 1982 with regard to collective bargaining, and for quite different reasons at the time.9 What was labour law criticised for? That it was inefficient and unsuited to the challenges of globalisation, digital technology and professional transitions, according to the advocates of these reforms. Yet French labour law has been constantly evolving10 in all its facets since the 2000s. On the other hand, the Macron reforms underpin the idea of reordering the functions and purposes of labour law not around the protection of the weaker party to the contract, but around the enhancement of competitiveness, competition and the market, in short replacing the centrality of protection—of the employee—with that of economic rationality—of the company. Labour law has always had this ambivalence, but now it should be geared towards the interests of the company and collective bargaining should be placed at the service of the employer, even if this means having agreements that are not negotiated, but proposed by the employer—in very small companies.

The laws passed during this period make substantial references to collective bargaining at cross-industry, industry or company level. Examples include, but are not limited to working time, employee savings schemes, Sunday work, Predictive management of jobs and skills (GPEC), gender equality, the generation contract, vocational training, mobility, job retention and job protection plans. If we add to this the obligations to negotiate at company or branch level, which have also multiplied, almost nothing now escapes collective bargaining. But it is not so much this extension to the entire employment relationship as the relationship between sources of law that is now problematic. As the rule of the State becomes more and more suppletive, leaving an unconstrained space for the rule of collective bargaining, company bargaining has in turn emancipated itself from the law and from the collective bargaining framework of the branch. The arrangement of the sources of law and the principle of favour which historically governed it are in fact being called into question. Perrulli11 speaks of a trend towards the “corporatisation”12 of industrial relations systems, profoundly affecting the traditional system of sources of labour law, causing an inversion of the pyramid of standards and a radical transformation of the historical function of collective bargaining, which was to improve the lot of workers and to provide legal support for innovations in support of social progress.

Collective labour agreements apply to all employees of companies that are members of the employers’ organisations that are signatories to the agreement or collective agreement. These agreements are contractual in nature and legally binding. When the agreement is extended by the Ministry of Labour, it applies to all employees of all companies within the scope of the agreement. It then takes on regulatory status.

1.1.1.4 Remarks on the Research Methodology

The concept of care worker does not exist in French law; it is not a legal category. It covers two types of activity covered by the Labour Code: domestic work and personal service and assistance in the field of care. Care work therefore corresponds in part to domestic work when it is carried out in the home of the person receiving the service and corresponds to article 1 of ILO Convention 189 “work done in or for one or more households”, a Convention not ratified by France.

The place of work is a determining criterion of the applicable legal provisions. If the work is carried out at the beneficiary’s home or in a private institution, employment law will apply unless otherwise stipulated. If the work is carried out in a public institution or by public employees at home, civil service law will apply.

Employment relationships in the private care sector are governed by 6 national collective conventions (NCC). Here again, the place where the activity is carried out is decisive: the beneficiary’s home or an institution. As far as the home is concerned, there are 3 national collective conventions (NCC) in force: one for the NCC for individual employers and home-based employment of 15 March 2021 (extended) and the other 2 applicable to legal entities pursuing a profit-making aim, the NCC for personal services companies (extended) of 20 September 2012, and, for non-profit establishments, the NCC for the home help, support, care and services sector (extended) of 21 May 2010. This distribution, the result of collective autonomy, state interventionism and the unique nature of these activities, is not common to the industrial model. The last three collective agreements have been extended; they therefore have regulatory status, which means that they apply to all employees of all employers within the scope of application, whether or not they are members of the signatory employers’ organisations. With regard to activity in institutions, there are still 3 national collective conventions in force: the NCC for Private Non-Profit Hospitalisation, Care, Cure and Custody Establishments of 31 October 1951, which has not been extended, the NCC for Private Hospitalisation of 18 April 2002, which has been extended, and the NCC for Establishments and Services for maladjusted and disabled Persons of 15 March 1966, updated to 15 September 1976, which has not been extended.

Although company agreements have become the norm in labour law, this report will only examine the law and industry-level collective agreements. A study of company agreements would have required a different timeframe and would, in any event, have been non-exhaustive.

1.1.2.1 A legislation recently codified

French civil service law has seen a major event with the ordinance of 24 November 2021 establishing the legislative part of the General Civil Service Code. It has been announced many times since the 1983 law, but has been abandoned time and again. Since 1983, civil service law has consisted of a “pediment” law of 13 July 1983 on the rights and obligations of civil servants and three “legislative columns” covering the State civil service (law of 11 January 1984), the local civil service (law of 26 January 1984) and the hospital civil service (law of 9 January 1986). Together, these constituted the general status of civil servants in France. With the ordinance of 24 November 2021 on the General Civil Service Code, it is almost the equivalent of the Labour Code that has been adopted for the three civil services. For the time being, however, this Code only consists of its legislative part; the regulatory part therefore remains to be integrated, which is bound to raise difficulties, as it is well known that the devil is in the detail. This Code came into force on 1st March 2022; but some of its provisions, in particular those relating to staff representation bodies, did not come into force until 1st January 2023. This is a codification of the law as it stands.

The Civil Service Code applies to all civil servants who hold civil service status and to contract staff. As the number of contract staff is increasing, the risk of a “civil service bis” is avoided. This explicit extension (art. L. 5) to contract staff applies insofar as the principles and standards set out are applicable to them. The Code spells out which workers are excluded from its scope (art. L. 6). The Civil Service Code is therefore not limited to the general status of civil servants, but has a broader scope by including contractual employees. Like the Labour Code, the Civil Service Code is organised thematically into 8 Books.13 Books II, VI, VII and VIII echo Parts II, III and IV of the Labour Code.

As this is a general code, the special statutes and employment frameworks of the State, regional and hospital civil services have been excluded from both the legislative and regulatory sections. This does not preclude the coexistence, alongside common standards, of rules specific to one of the three civil services, particularly with regard to social dialogue bodies.

The competent court in the event of a dispute between a public employee and his establishment is the administrative court (Tribunal administratif and Conseil d’État).

1.1.2.2 A Legislation Now Fully Open to the Collective Bargaining

The introduction of collective bargaining into civil service law has been a gradual process. The Act of 13 July 1983 on the rights and obligations of civil servants was the starting point for an extension of the social dialogue tools introduced in 1946 with the Act on the status of the civil service. The Act of 5 July 2010 on social dialogue in the civil service broadened the scope of matters that could be the subject of negotiation and also laid down the rules governing the legal validity of the resulting agreements. Nevertheless, the Conseil d’Etat remained faithful to its case law, according to which memorandums of understanding had no legal value.14 Despite a burgeoning culture of discussion and negotiation, few agreements were concluded.15

The law of 6 August 2019 on the transformation of the civil service paved the way for the government to take significant steps to promote negotiated agreements in the civil service at national and local level. This was the purpose of the Ordinance of 17 February 2021 on collective bargaining and agreements in the civil service. The 2021 law contains three essential elements relating to an exhaustive list of subjects for negotiation, the level of negotiations and the legal scope of agreements.

Firstly, the text establishes that negotiations on pay and purchasing power can only take place at national level between representative national trade unions and government representatives. The exclusivity of the national level is undoubtedly explained by budgetary reasons and respect for the principle of equal treatment between public servants.

Secondly, collective bargaining on the subjects listed exhaustively at16 may take place at national or local level between representative trade unions of civil servants and administrative and territorial authorities. With regard to the relationship between the national and local levels, the Act of 13 July 1983, which has been incorporated into the Civil Service Code, stipulates that “an agreement at a lower level may only specify a national-level agreement or improve its general structure, while respecting the essential stipulations”. The legislator is here repeating what was a general principle that prevailed in labour law before the reforms of the last two decades. This is one of the major differences that remains with labour law. A second difference is that there is no obligation to negotiate in the new civil service law.

Thirdly, the 2021 text stipulates that majority agreements reached in the areas listed are legally binding.17 This is a first, indeed a Copernican revolution in civil service law. The collective labour agreement thus becomes an autonomous source of law in many areas, those that do not fall within the scope of the Staff Regulations,18 it acquires binding force.

The 2021 reform

puts an end to the previous paradoxes of a norm that is valid but devoid of any legal scope, but has certainly not crossed the Rubicon of opening up the field of the Staff Regulations to negotiation. On the other hand, this reform accentuates the dual role of the civil servant, who has become both a servant of the general interest and a “worker” within EU law as a result of previous reforms. The place of the negotiated norm among the sources of civil service law now marks this duality; it echoes the contemporary face of the public servant.19

The 2021 ordinance therefore marks the end of the specific nature of civil service law in France, during which collective agreements were legally treated as mere declarations of intent. That said, this reform, which has only recently come into force—on 1st January 2023—will only have a significant impact once the social partners and government departments have adopted this new tool. At present, two collective agreements have been concluded, one on teleworking and the other on supplementary social protection, which will be the only one used in our research.

4.1.1.1 Recruitment Conditions

The choice of recruitment is a matter for the employer. However, the employer must comply with a certain number of rules or general principles of labour law and civil service law, such as the rule of non-discrimination in recruitment or equal opportunities.124 However, collective bargaining law may include additional requirements for employee recruitment in the healthcare sector.125 By way of illustration, the national collective agreement for establishments and services for the maladjusted and disabled stipulates that

companies shall offer newly recruited employees without qualifications to undertake, within 2 years, a training course leading to a qualification in the sector, at least level V, taking into account their career plans. For employees without qualifications who are already in post, the employer undertakes to offer training leading to a qualification in the sector, at least level V, or to facilitate the employee’s commitment to a process of validating the experience acquired in order to obtain a minimum level V diploma. Employees who have obtained a level V qualification within this framework will be given priority consideration for any corresponding position available in the company if they apply for the position concerned. This includes professionals covered by appendices III, IV, IX and X as well as the following jobs: housekeeper, qualified night supervisor and family assistant.126

Generally speaking, in both the private and public sectors, the conditions for recruitment as a carer are those relating to the applicant’s physical abilities, proof of a qualification or diploma and qualification and/or success in a public service competition.127

4.1.1.2 Specific Clauses in Individual Employment Contracts in the Care Sector

Almost all the national collective agreements studied128 emphasise the “special setting” of the home (of the employer/user) as the place where the worker is employed, the duty of accountability and the requirement of loyalty on the part of staff, in particular against abuse of the weakness of people receiving care. Confidentiality and professional secrecy clauses can be found in most collective agreements applicable to care workers.129 The regulations are more geared towards protecting users than carers.130

In addition, all NCC for public or private hospitals, whether commercial or not-for-profit, emphasise “the needs of the service” or “the requirements of the service” in order to provide for additional constraints or particular hardships (organisation of working hours, timetables and distribution, duty roster with notice period) for employees, sometimes in return for compensation in the form of compensatory rest or allowances (such as weekly rest days or additional days of holiday).131 Failure to comply with these special clauses may result in penalties that are often particularly severe.132

In the public sector, entire chapters (Chapter II, Book Ist, Title II) are devoted to the issue of preventing conflicts of interest and criminal offences (art. L122-1 to L122-25), as well as to the issue of employee liability (Chapter V of the same title: art. L125-1 to L125-2).

4.1.1.3 The Legal Regime Governing the Trial Period

The length of the trial period (4.1.1.3.1) and the conditions governing its termination (4.1.1.3.2) are governed by law.

4.1.1.3.1 Length of Probationary Period (Including Renewal)

The trial period is an integral part of the employment contract. Consequently, its duration and the possibility of its renewal must be mentioned in the employment contract and cannot be presumed. As the main purpose of the trial period is to assess the employee’s suitability for the proposed position, any absence on the part of the employee, for whatever reason, will automatically suspend and extend the trial period.

The length of the trial period depends on the employee’s professional category and the nature of the contract. Regardless of the professional category, the trial period may be renewed once for a period not exceeding that of the initial period, subject to the written agreement of the parties before the end of the trial period.

4.1.1.3.2 Breach of the Probationary Period (Requirement for a Period of Notice and Penalties)

During the trial period, both parties may terminate the contract at any time without notice or compensation. The very purpose of a trial period is to enable the employer to assess the employee’s qualities and the employee to assess the working environment.

If either party wishes to terminate the relationship during the trial period, they must comply with the conditions laid down by law and by collective bargaining agreements to avoid abuse. Some national collective agreements in the care sector simply refer to ordinary law. For example, article 43.2 of the NCC for Private Hospital governs the notice period, distinguishing according to the form of contract (permanent or fixed-term) and whether the termination is initiated by the employer or the employee. Thus,

in accordance with article L. 1221-25 of the Labour Code, when the trial period is terminated by the employer and until the end of the trial period, the employee is notified within a period that may not be less than: - 24 hours less than 8 days’ presence; - 48 hours between 8 days and 1 month’s presence; - 2 weeks after 1 month’s presence; - 1 month after 3 months’ presence. If this period is completed, the employee concerned will be entitled to 2 days’ paid job-seeking leave during the month. Each day corresponds to the employee’s normal working day. These time limits apply to the termination of a fixed-term or open-ended contract throughout the trial period. However, in the case of a fixed-term contract, no notice period is required if the trial period is less than 1 week.133

Conversely, when the trial period is terminated by the employee, he must give 48 hours’ notice. This notice period is reduced to 24 hours if the employee has been with the company for less than 8 days. These notice periods apply to the termination during the trial period of a fixed-term or open-ended contract.134

4.1.2.1 Fixed-Term Contracts

The use of fixed-term contracts and other atypical contracts is authorised under certain conditions that are strictly and exhaustively listed in the law.135 With regard to the reasons for using fixed-term contracts, most national collective agreements refer to legal law. For example, while they reiterate that the principle is recruitment under an open-ended employment contract, the national collective agreement for personal services companies (extended) emphasises that

the particular nature of personal services activities is based on the organisation of work in the form of interventions with private individuals receiving services, the duration and frequency of which vary greatly. Fixed-term contracts may be concluded: in the cases provided for by law for the replacement of one or more employees; in the cases provided for by law for the reason of a temporary increase in activity; in the other cases provided for by the provisions of this agreement.136

According to the NCC Establishments and Services for maladjusted and disabled people Persons, “employees hired on an intermittent or temporary basis benefit from the provisions included in this agreement”. With regard to fixed-term employment, article 14 of the same collective agreement states that

temporary staff are hired for a specific full-time or part-time job of a temporary nature, in particular to replace the absent holder of a permanent post or to carry out work of an exceptional nature. The temporary nature of the job and its duration must be stated in the letter of recruitment.137

In principle, workers hired under fixed-term contracts have the same rights as permanent workers, in terms of pay and other social benefits linked to the employment contract. They benefit from the same social security cover as the company’s permanent employees. In addition, at the end of the fixed-term contract, the employee is entitled under the French Labour Code to a bonus intended to compensate for the precarious nature of the contract and amounting to 10% of the total gross remuneration received during the contract.138 This bonus is paid when the fixed-term contract comes to an end and is not immediately continued under an open-ended contract.

The fixed-term contract can evolve into a permanent contract (CDI) or even a temporary permanent contract created in 2014 (CDII).

4.1.2.2 Part-Time Work

Legal recognition of part-time work by the law of 27 November 1973, which allowed “the employer to arrange, on a permanent or temporary basis, reduced working hours applicable only to employees who so request”. At the time, switching a full-time employee to part-time work was the only option envisaged, the initiative for which was given exclusively to the employee. Since the Act of 28 January 1981, employers have also been able to offer reduced working hours to employees and jobseekers on their own initiative, provided that priority is given to employees and jobseekers who so request.

The extent to which employees have control over the form and conditions of their employment depends on the framework in which they place their initiative. No less than five legal mechanisms can be mobilised depending on the need for a reduction in working hours that the full-time employee intends to satisfy. In addition to the general framework provided by article L. 3123-2 of the Labour Code, which covers all personal needs, the education of young children, caring for someone at the end of their life, looking after a dependent relative, or a business start-up or takeover project are all covered by dedicated schemes which, when compared, give employees varying degrees of control over the decision to reduce their working hours and the arrangements for doing so. However, since the national inter-professional agreement (ANI) of 11 January 2013 and the law of 14 June 2013, the system seems to have stabilised. It is true that the Labour Act of 8 August 2016 made its contribution by redefining the role of the players in the production of standards, but it did not call into question the trade-off between the different interests.

Are these opposing rationales? The 1981 Act has undergone a number of reforms, all of which have sought to reconcile approaches that at first glance appear to be at odds with each other. How, at the same time, can a (primarily) employee-oriented rationale of individual aspiration be translated into legal terms, and a company-oriented rationale of flexibility and development of competitiveness? The equation seems difficult to resolve, to say the least, especially if we add to it considerations linked to employment policy or family policy, which lead to part-time work being seen as a way of sharing jobs (two part-time jobs for one full-time job) or reconciling work and family life.

However, the legal provisions on part-time working do not apply to employees of “private individuals as employers”, and this has been confirmed on several occasions by the Cour de cassation. It has ruled that, by way of derogation, the provisions of the Labour Code on the content and form of part-time contracts do not apply to employees of “private individuals”. The presumption of full-time work for part-time employees who do not have a written contract therefore does not apply where the Chèque Emploi Service Unique (CESU) method is used and a written contract is not mandatory. Thus, the High Court refused an employee of a private employer the benefit of Article L. 3123-14 of the French Labour Code relating to the form and content of part-time employment contracts, and in particular the rule whereby in the absence of a written employment contract, or in the absence of the compulsory information in the contract concluded on a part-time basis, the employment is presumed to be full-time.139

Another feature of part-time contracts and fixed-term contracts is that they are reserved for certain care activities only. It is likely to modify the working hours of employees. In such cases, they give rise to compensation, particularly in terms of pay.140 Finally, following the law, the collective agreement provides for equal rights for part-time and full-time employees.141

4.1.2.3 The Temporary Employment Contract

Temporary work has a significant impact on the healthcare sector in France. These are temporary contracts between temporary workers and temporary employment agencies, which then make them available to healthcare establishments. The duration of these contracts can vary according to requirements, but is generally limited to 18 months.142

Healthcare establishments, such as hospitals and clinics, often use temporary workers to cope with fluctuations in staffing demand, whether due to holidays, temporary work overload or one-off requirements. What’s more, temporary work offers invaluable flexibility in meeting immediate staffing needs. Temporary staff can be mobilised quickly to cover absences or urgent requirements.

The impact of temporary work in the care sector is also apparent from the point of view of employment regulations. In France, temporary work is strictly regulated. Temporary employment agencies must comply with labour laws on wages, working hours, holiday pay and other workers’ rights. Temporary workers enjoy the same rights as permanent workers. Temporary workers are paid according to their qualifications, the establishment where they work and the type of assignment. They receive an hourly wage which may be similar to that of permanent workers. The Labour Code prohibits any difference in treatment between temporary workers and other workers. However, because of the precarious nature of their employment, the Labour Code provides, as it does for fixed-term contracts, for a precariousness allowance at the end of the assignment that is identical to the bonus paid at the end of a fixed-term contract. As for the various social benefits, temporary workers are entitled to social security benefits such as health insurance, unemployment insurance and pensions, which are managed by the temporary employment agencies. As far as training is concerned, temporary workers can receive specific training to prepare them for their assignments, particularly in the care sector where special skills are often required.

Temporary work is an important component of employment in the healthcare sector in France, offering a flexible solution to meet the staffing needs of healthcare establishments. However, it is governed by strict regulations designed to protect the rights of temporary workers in principle and to guarantee their equal treatment with permanent workers.

6.1.1.1 Part-Time in the Private Sector

In the private healthcare sector, the legal provisions governing part-time working (6.1.1.1.1) are supplemented by contractual standards specific to each area of activity (6.1.1.1.2).

6.1.1.1.1 The Law232

First of all, under French law, a part-time employee is one whose working time is less than either the legal or collectively agreed weekly working time, or the legal or collectively agreed monthly working time, or the legal annual working time (1607 hours) or the collectively agreed annual working time.233

The provisions relating to overtime and compulsory time off in lieu apply to hours worked in excess of the legal or collectively agreed working time.234 Part-time employees benefit from a minimum weekly working time in order to limit the effects of casualisation and the risk of poverty. The law sets this threshold at 24 hours per week or the equivalent per month or per year.235 Employees have the right to request, in writing, a shorter working week to enable them to work full time in the case of multiple jobs, or to work the minimum 24 hours per week.

The employment contract must be in writing and must include compulsory information, including the weekly or monthly working hours, the distribution of working hours between the days of the week or the weeks of the month, except for employees of home help associations and companies and except for part-time employees covered by a collective agreement on the organisation of working hours.236

The written document must also specify the cases in which this distribution may be modified, as well as the nature of this modification; the terms and conditions according to which the working hours for each working day are communicated in writing to the employee must also be written down. In home help associations and companies, the working hours are communicated to the employee in writing each month; in the absence of such communication, the contract is deemed to be concluded on a full-time basis.237 The employee must be given 7 days’ written notice of any change in the working hours. The employee may refuse a change in the distribution of working hours, without this constituting grounds for sanction or dismissal, if the cases and nature of such changes have not been specified in the contract, or if this is incompatible with his or her overriding family obligations or with attending school or with completing a period of activity set by another employer or with a self-employed professional activity.238 This is also the case when timetables are changed during the day. The number of interruptions during the day is set at one and may not exceed 2 hours.

Finally, the written agreement must specify the limits within which overtime may be worked in excess of the contractual number of hours. Overtime that does not result in the weekly working time exceeding the legal or contractual working time is subject to additional pay. The number of overtime hours may not exceed one tenth of the contractual working time. The employee may refuse to work overtime in excess of that stipulated in the contract. If an employee works more than 2 hours of overtime per week or month for more than 12 consecutive weeks, the contractual working hours must be changed, subject to 7 days’ notice and the employee’s not objecting. Overtime is increased by 10% for up to 10 hours of overtime and by 25% for each hour of overtime worked in excess of this. The monthly working time of a part-time employee may not be reduced by more than one third by the use of a credit of hours in respect of a representative mandate.

The legal provisions on the minimum working week, the quota of overtime hours, the rate of increase for overtime hours, breaks during the day and the notice period for changes in the distribution of working hours are of a suppletive nature. They therefore only apply in the absence of a company or branch agreement or collective agreement and may be revised downwards under the conditions laid down by law and set out below.

6.1.1.1.2 Collectively Agreed Part-Time Working Arrangements

An agreement or collective agreement may provide for the introduction of part-time working at the initiative of the employer and/or at the request of employees. In the care sector, it should be noted that the NCC for private non-for-profit hospital and nursing establishment of 1951 is silent on part-time working, as is the NCC Individual employers and home based employment of 2021. This does not prevent employers in companies falling within this scope from deciding to conclude collective company agreements or to decide unilaterally to implement part-time working. Company or branch agreements and collective bargaining agreements can be derogatory (in peius) on the following subjects:

The minimum weekly, monthly or annual working hours; in this case, guarantees must be provided as to how the employee will be able to combine several activities so that he or she can work full time or reach the legal minimum of 24 hours. In addition, there must be clauses setting out the arrangements for grouping working hours into regular full days or half-days. The rate of increase may not be less than 10%. Additional hours may be set by rider (up to 8 per year). The law lays down a minimum threshold: additional hours worked over and above those set by the rider are subject to a 25% increase in pay. Interruptions during the day: if the agreement provides for more than one interruption or more than 2 hours, the agreement must define the working hours and provide for compensation.239 On the notice period for changes in allocation, which may be less than 7 days, but must be at least 3 days. In home help associations and companies, this period may be shorter in urgent cases defined by agreement or extended branch agreement or company agreement.240 Agreements providing for periods of less than 7 days must provide for compensation.241

6.1.1.2 Part-Time Work in the Public Sector

Part-time work is governed by articles L. 612-1 to L. 612-15 of the General Civil Service Code. As in the private sector, part-time work requires a minimum working week of at least half-time. Applications must be submitted for authorisation, which is granted subject to the requirements of continuity and operation of the service, taking into account the possibilities for reorganising work.242 Reasons must be given for any refusal and an interview must be held. The Civil Service Code provides for full authorisation to work part-time (from 50% to 80%) in the following cases: on the occasion of each birth, up to the child’s third birthday; on the occasion of each adoption, up to the expiry of a period of three years from the arrival in the home of the adopted child; to care for a person with a disability requiring the presence of a third party, or who has suffered a serious accident or illness, if that person is the civil servant’s spouse, partner in a civil solidarity pact, dependent child or ascendant; if the civil servant falls into one of the disability categories mentioned in 1°, 2°, 3°, 4°, 9°, 10° and 11° of article L. 5212-13 of the French Labour Code, on the advice of the occupational physician.243

In the civil service (Articles L. 612-9 to L. 612-11), certain grades, certain jobs or certain functions defined by decree of the Conseil d’Etat exclude any possibility of part-time working. The amount of part-time work may be adjusted provided that the weekly service resulting from this adjustment comprises either a whole number of hours or a whole number of half-days, in accordance with the conditions laid down by decree of the Conseil d’Etat.244 The same possibility exists under the same conditions in the local civil service.245

The General Civil Service Code also provides for the possibility of holding permanent non-full-time posts. In the local civil service, this may apply to nurses who may, where justified by the nature of their duties or the needs of the service, be authorised to occupy a permanent, non-full-time post or to perform duties involving incomplete service.246 Permanent non-full-time posts are created by decision of the board of directors of the departmental fire and rescue service. This decision sets the weekly working hours for each post. The local civil servants concerned may hold another permanent non-full-time post covered by the aforementioned Code or engage in a self-employed professional activity. Hospital civil servants belonging to bodies mentioned in a decree of the Conseil d’Etat may be appointed to permanent non-full-time posts of a duration greater than or equal to the duration mentioned in article L. 332-16.

6.1.2.1 Working Time Law in the Private Sector

The law on working hours is based on 3 elements: actual working hours (6.1.2.1.1), maximum working hours (6.1.2.1.2) and overtime (6.1.2.1.3).

6.1.2.1.1 Actual Working Hours

Effective working time is defined by article L. 3121-1 of the French Labour Code as “the time during which the employee is at the employer’s disposal and complies with the employer’s instructions without being free to pursue personal interests”. This legal definition also applies to the public sector (including all civil services), as Article L.611-1 of the General Civil Service Code expressly refers to the Labour Code. The same definition is used almost systematically in the sector’s collective agreements. This definition plays an important role for several reasons. It is used to calculate rest periods, holidays, overtime, pay and social security contributions. It makes it possible to distinguish between time that is paid and time that is not, even if the employee is in the company. This means that a whole range of time will not qualify as actual working time. For example, travelling time to the place of performance of the employment contract (home-workplace) is not actual working time.247 In principle, breaks and meal times are therefore not actual working time unless the employee is, as the definition indicates, “at the employer’s disposal”. The legislator treats dressing and undressing time differently: if this is required by law, agreement, internal regulations or the employment contract, and if these operations must be carried out in the company, then this time is subject to compensation, either in the form of rest or in financial terms. In the absence of an agreement on meal times, breaks and dressing/undressing, the employment contract may provide for compensation.

The treatment of actual working time varies greatly depending on whether the activity takes place in an institution or at the beneficiary’s home. In the first case, the agreements are relatively laconic. For example, the national collective agreement for establishments and services for the maladjusted and disabled, Title IV (not extended), states that “when the employee is unable to leave his or her workstation during the break, the break is nevertheless paid, particularly for employees responsible for the safety and continuity of care for users”. On the other hand, collective agreements in the home care sector are very detailed, taking into account the specific features of the way work is organised, both from a quantitative perspective in terms of counting working hours and from a qualitative perspective in terms of the moral investment required of the employee.

For example, the NCC for personal services companies of 20 September 2012 (extended) provides that for people working at home or at a place chosen by the beneficiary, the time spent preparing for any service at the place of work, including putting on appropriate clothing, is treated as actual working time. Catering time is treated in the same way as under the French Labour Code: if the employee remains at the workplace “where the service is required at the same time”, this is working time. Commuting time becomes working time if it lasts more than 45 minutes (return journey) or covers a distance of more than 30 km. Financial compensation of not less than 10% of the hourly rate will be paid for travelling time in excess of this. The time spent travelling between the places of work is working time when the employee cannot be self-sufficient. If the employee uses his own vehicle, he is entitled to an allowance of at least 35 cents/km. The time between 2 interventions is taken into account as follows: in the event of an interruption of less than 15 minutes, the waiting time is paid as working time; in the event of an interruption of more than 15 minutes (excluding the journey between the 2 interventions), the employee has regained his freedom and can go about his personal business without any particular instructions from the employer, in which case the time is neither counted as working time nor paid. According to the above-mentioned NCC, a working day may not comprise more than 4 interruptions, 2 of which may not each exceed 2 hours. If there are more than 3 interruptions each lasting more than 15 minutes, flat-rate compensation is paid for the 4th in an amount not less than 10% of the hourly rate.248

This is also the case for the NCC for individual employers and home based employment of 15 March 2021 (extended), which stipulates three working regimes in terms of working hours: regular, irregular and “responsible presence hours” during the day. Employees in the benchmark jobs in the “Adult” field defined in appendix 7 of the collective agreement may, within the framework of the working hours defined in the employment contract, work “responsible daytime presence hours”. Within the framework of the timetable defined in the employment contract, these employees may carry out hours of actual work, but also hours of responsible daytime presence. These responsible daytime presence hours are those when the employee can use his time for himself (reading, resting, etc.) while remaining vigilant to intervene, if necessary. The number of hours depends on the composition of the family and/or the state of health of the employer, who is disabled or losing his autonomy. The collective agreement determines the legal status of these hours: they are not counted as normal working hours. One hour of responsible presence is equivalent to 2/3 of an hour’s actual work. The hours of responsible presence during the day must therefore be converted into actual working hours when calculating the actual weekly working time. The respective number of hours actually worked and hours of responsible presence must be specified in the employment contract (or in the letter of engagement). If the employee is required to work on a recurring basis, the hours of responsible presence will be reclassified as actual working hours. If this is the case, an amendment to the contract will have to be agreed between the parties.

Another example is provided by the NCC for home help, support, care and services of 21 May 2010, which has been extended and which sets out in detail the contractual arrangements for working hours in order to reposition working time with regard to the specific features of the organisation of work involving travel, on the one hand, and of the profession and its related effects in terms of the quality of life at work, on the other. To this end, the NCC focuses on three points.

First of all, the NCC clarifies the definition of the legal period of effective working time, some of which are educational for both the employee and the employer. The following in particular are therefore considered to be actual working time support time; internal consultation or coordination time; consultation and summary time with professionals from outside the company; time spent drafting assessments; “dead time” in the event of the user’s absence for the duration of the planned intervention, whenever the absence is not reported; travel time between two consecutive periods of actual work; time spent organising and distributing work; time spent on continuing professional training as part of the training plan, with the exception of training carried out outside working hours, in particular as part of the individual right to training; time spent on occupational health check-ups and additional examinations; meal times when the employee remains at the employer’s disposal and is unable to attend to personal matters; time spent on the right of expression as part of the provisions of the collective bargaining agreement; time spent on delegations to staff representative bodies. Secondly, as the activity carried out in the beneficiary’s home involves travel by the worker, the NCC includes several clauses on the equivalence between travel time and working time. The NCC includes clauses on travel, which is an integral part of their professional practice and is paid for on the basis of the following provisions: 1 half-day is made up of either: - the afternoon/evening, which begins with the first shift after the lunch break and ends at the end of the last shift. The travelling time required between two successive periods of actual work during the same half-day is considered as actual working time and paid as such, as long as they are consecutive. When the successive periods of actual work during the same half-day are not consecutive, the travelling time between these two periods is reconstituted and considered as actual working time and paid as such. The employer may use tools to facilitate the recording and monitoring of such travel time. However, these tools must not prevent time and mileage from being verified on the basis of the actual time worked. The same rules apply to employees who work at night. Naturally, the NCC includes clauses on compensation for travel expenses and on insurance cover for the employee’s vehicle if it is the one used to carry out his or her duties.249 Thirdly, it is the only agreement that expresses the will to integrate working hours as an element of the quality of life at work: “The organisation of work plays an essential role in the quality of life and health at work. To enable feedback on situations encountered in the home, the employer must organise at least 8 hours a year of discussion time for employees in the intervention sector and for employees in charge of planning. These exchange times may be: support times (psychological support, analysis of practice) up to a maximum of 11 hours per year and per employee; work organisation and distribution times up to a maximum of 11 hours per year and per employee. On its own initiative, the employer may decide, depending on the employee’s mission or complex cases, to supplement the time for organising and distributing work referred to above with time for consultation or internal coordination, up to a limit of 40 hours per year per employee. The employer organises this time either collectively or individually. With regard to the organisation and distribution of work, the employer gives priority to organising these times collectively. These times are scheduled at least once a month to encourage as many employees as possible to take part.”250 The NCC expresses a concern to ensure that the length of time worked is consistent with the purpose of the work (quality of life at work): Art. 4 “The minimum duration of the intervention must allow it to be feasible in order to ensure, in compliance with official recommendations on good treatment, quality services for users and good working conditions for employees. The question of the minimum duration of the intervention is the subject of consultation with the works council or, failing that, the staff representatives, if they exist, at least once a year.

The Labour Code regulates the special time spent on call, which is customary in the healthcare sector. This is a period during which the employee, without being in the workplace and without being permanently and immediately available to the employer, must be able to intervene to carry out work for the employer: this is actual working time.251 This period is compensated either financially or by time off. It is taken into account when calculating the minimum rest period. It is the responsibility of the company or branch agreement or convention to set up standby duty, the way it is organised, the arrangements for providing information, the notice periods and the compensation in the form of either money or time off. Failing this, the decision will be taken by the employer after consulting the Social and Economic Committee and informing the Labour Inspectorate. On-call duty is covered by collective bargaining agreements.

The NCC for private non-for-profit hospital and nursing establishment of 31 October 1951 (not extended) provides for a system of on-call duty at home or in the establishment.

When the continuity of care and safety services so requires, certain staff, the list of whom is drawn up in each establishment after consultation with the works council or, in the absence thereof, the staff representatives, may be called upon to perform on-call duty at home.

The frequency of such on-call duty may not exceed 10 nights per month per employee, as well as one Sunday and one public holiday per month. Staff performing on-call duties at home are remunerated as follows. If the on-call duty is performed during the day, except if it is performed on a Sunday or public holiday, 1 hour of on-call duty is equivalent to 15 minutes of work at the normal rate; - if the on-call duty is performed at night and on Sundays and public holidays, 1 hour of on-call duty is equivalent to 20 minutes of work at the normal rate.

If, during an on-call period, the employee is called upon to do actual work, this time will be remunerated as actual work with the application of the corresponding supplements, provided that the legal and regulatory conditions giving entitlement to these supplements are met.252

The NCC for personal services companies of 2012 (extended) provides for the possibility of on-call duty, which it defines as a legal right, specifying that

the possibility of being subject to on-call duty and the compensation granted to employees must be included in the employment contract. The compensation will take the form of compensatory rest. This compensation will be 2.5 hours of compensatory rest for every 24 hours of on-call time, where applicable in proportion to the duration of the on-call period. This compensatory rest may be replaced by at least equivalent financial compensation with the agreement of the parties…

The NCC sets limits on the use of on-call duty: it must be used in accordance with the employee’s unavailability, it must be strictly reserved for daily or weekly rest periods, it must be limited in terms of the number of hours and the possibility of exceeding the limits set must be open only on a voluntary basis.

The NCC for home help, support, care and services of 2012 which has been extended, also sets out arrangements for on-call duty, which it defines in the same way as the law. Employees may refuse to work 1 Sunday or 1 public holiday no more than twice a year, without their refusal constituting misconduct or grounds for dismissal. The NCC takes into account the impact of standby duty on employees’ personal lives, providing a relatively protective framework in terms of predictability and planning. All employees may be required to be on call at or near home, including on Sundays and public holidays. As far as possible, and in order to enable each employee to reconcile his professional and personal life, the employers draw up a quarterly schedule given to each employee indicating his days or periods of on-call duty. Changes to this schedule may not be made within a period of less than 1 month, except in the case of replacing a colleague who is unavoidably absent, in which case the employee may be notified within a period of less than 3 days. The employer shall set up an organisation enabling employees to be contacted at any time when they are on call. If on-call employees are called to work, their working time is effective working time, including the time spent travelling to and from work. Effective working time during on-call time is cumulated with the on-call allowance. A Sunday worked or public holiday cannot be followed by an on-call Sunday or public holiday. In addition, the NCC makes on-call duty a subject for consultation with staff representative bodies and sets precise quantitative limits: After consultation with the works council or, failing that, staff representatives if they exist, the number of on-call periods per month is limited to: - either 8 on-call periods of 24 hours or 16 on-call periods of 12 hours; - for SSIADs, CSIs and management staff, on-call periods may be split into periods of up to 150 hours per month spread over a maximum of 5 days per week. Under no circumstances may the time actually worked during on-call duty have the effect of: - to reduce the daily or weekly rest period laid down by the provisions of the law or collective bargaining agreement. Employees on call are entitled to an additional element of remuneration (ECR) defined in article III-19.2 of the said agreement.

6.1.2.1.2 Maximum Working Hours and Overtime

6.1.2.1.2.1 Maximum Working Hours

The maximum daily working time may not exceed 10 hours (public policy), unless a derogation is granted by the labour inspector, in an emergency or under a company or branch agreement in the event of increased activity or for reasons relating to the organisation of the company, provided that this does not exceed 12 hours. The maximum weekly working time is 48 hours over one week (public policy provision) or 44 hours (or 46 hours under a company or branch agreement) over 12 consecutive weeks; exceptions may be made with the authorisation of the Labour Inspectorate, provided that they do not exceed 60 hours. These daily and weekly maximums are combined with compulsory rest periods, which are also a matter of public policy. As soon as the actual daily working time reaches 6 hours, the employee is entitled to a break of at least 20 consecutive minutes (public policy).

In most cases, collective bargaining law incorporates and clarifies legal provisions on working hours. For example, the NCC for establishment and services for maladjusted and disabled persons of 15 March 1966, Title IV (not extended) provides that the uninterrupted rest period between 2 working days is set at 11 consecutive hours. However, when the needs of the service so require, this period may be reduced to not less than 9 hours, under the conditions laid down in the industry agreement of 1st April 1999. The maximum daily working time is 10 hours, day or night. However, in order to respond to specific situations, it may be extended to 12 hours in accordance with legal provisions. In the event of discontinuous work, when the nature of the activity so requires, this duration may include 3 working sequences of a minimum duration of 2 hours.

The NCC for private non-for-profit hospital and nursing establishment of 31 October 1951 (not extended) includes the legal texts relating to the 35-hour working week and weekly rest periods. However,

Taking into account the needs of the service and after consulting the works council or, in its absence, the staff representatives, the organisation of the working week is established in accordance with the provisions of articles 05.05.2 to 05.05.5. Working hours shall be allocated in such a way as to cover all requirements resulting from the organisation of services and the need to ensure continuity of care, safety and well-being of users, including at night, on Sundays and public holidays.

Staff required to ensure continuity of service must be able to take at least 1 Sunday every 3 weeks as part of their 2 consecutive days off.

Subject to a different organisation of work defined by company or establishment agreement concluded in compliance with legal and regulatory provisions, in each establishment, staff are employed in accordance with the indications of a duty roster specifying for at least 2 weeks the distribution of working days and hours. The provisional duty roster shall be drawn up at the initiative of the employer or his representative and brought to the attention of the staff by posting it in the various workplaces, in principle 1 week—and in any event no later than 4 days—before its application. Where the organisation of working time is not established over 2 weeks, the working hours must be brought to the attention of employees in compliance with the legal and regulatory provisions, particularly with regard to posting. Any change in the initially planned distribution of working hours and days shall give rise to a rectification of the duty roster in compliance with the legal and regulatory provisions, where this is justified by an emergency.

For full-time employees, in the event of discontinuous work, the daily working time may not be split into more than two working periods of at least 3 hours each.

Collective bargaining law in the home care sector also takes account of the specific features of the activity and its organisation, not so much in terms of exceeding the maximum working hours mentioned above, but in terms of organising working hours in a way that differs from practices in the industrial and commercial sector. To this end, the NCCs use the concepts of amplitude and distribution of the working day to meet “service imperatives”.

For example, the NCC for personal services companies of 20 September 2012 (extended) specifies that the daily working time may not exceed 12 hours. The daily working time may be extended to 13 hours for work with vulnerable and/or dependent individuals. However, if the normal contractual travel time from home to the place of work is exceeded (see point d, section 2), the excess must be deducted from the maximum daily working time of 13 hours. The daily working time is calculated on the same day from 0 hours to 24 hours. (2). The maximum daily working time is in principle 10 hours, but may be increased to a maximum of 12 hours for up to 70 days a year. The maximum daily working time is calculated on a daily basis, i.e. from 0 hours to 24 hours. The maximum weekly working time may not exceed 48 hours or 44 hours over any period of 12 consecutive weeks. In addition, the same agreement provides that the distribution of working hours may be modified according to service requirements. “… Details of the work carried out by the employee with beneficiaries are made available to him/her by the employer. The employee may consult it at any time.”

In return for less than 7 days’ notice of changes to working hours, and in compliance with the periods of unavailability that must be stipulated in the employment contract, employees may refuse to change their working hours 7 times per calendar year, without such refusals constituting misconduct or grounds for dismissal and without these hours being deducted in any way whatsoever. Any refusal to change working hours must be confirmed in writing by the employer to the employee. This confirmation must include the proposed working hours refused, the number of refusals recorded by the employer during the calendar year and the contractual unavailability periods.

Lastly, the NCC stipulates that the usual weekly rest period is Sunday, and that there must be at least 35 consecutive hours between 2 operations during the week. However, given the need for daily operations due to the special nature of the services provided to employees, it is possible to derogate from the Sunday rest rule, up to a limit of 2 Sundays per month, unless the employee agrees. To take account of the constraints associated with Sunday working, remuneration is increased by at least 10%. Employees who do not wish to work on Sundays may specify this in their contract of employment as part of the periods of unavailability.

In order to take account of the service requirements specific to this sector, the NCC individual employer and home-based employment (extended) distinguishes between 2 working regimes, regular/irregular, which it defines as follows. When the parties determine a fixed weekly working time; or when periods of work follow one another and/or are repeated regularly according to a working pattern laid down in the employment contract and any amendments thereto. Working periods are expressed in days and/or weeks. When the working hours do not meet one of the conditions for regular working hours, they are said to be “irregular”. Where applicable, the individual employer must inform the employee in writing of the working hours and their distribution, giving 5 calendar days’ notice. To this end, the employer may provide the employee with a schedule for each work cycle.

6.1.2.1.2.2 Overtime

According to the French Labour Code, the legal working week is 35 hours. Any hour worked in excess of this is considered to be overtime. Overtime is calculated on a weekly basis and may be worked up to a maximum annual quota. Any overtime worked in excess of this entitles the employee to compulsory time off in lieu. Overtime is paid at a higher rate of 25% for the first 8 hours of overtime and 50% thereafter (supplementary legal provisions). A branch or company agreement may provide for a different rate of overtime pay, provided that it is not less than 10%. These agreements may also set out all the conditions under which overtime may be worked in excess of the annual quota, as well as the duration, characteristics and conditions of compulsory time off in lieu, which may not be less than 50% of the hours worked. In companies where there is no trade union representative, the employer may replace all or part of the overtime pay and supplements with compensatory rest, provided that the CSE, if it exists, does not object.

The NCC for the home help, support, care and services as extended, incorporates the maximum daily working hours, weekly working hours, monthly working hours and maximum daily working amplitude set by law and referred to above.

Conversely, the NCC for individual employer and home based employment (extended) includes a working time regime that is distinct in several respects from statutory law, for the simple reason that the latter does not apply to home care workers employed by private individuals. The situation of home care workers employed by a private employer is more unfavourable than that of workers subject to ordinary labour law, and consequently than that of workers benefiting from the application of the NCC de l’aide à domicile of 2010 mentioned above or the NCC for personal services companies of 2012.

The NCC sets the contractual working time in excess of the statutory working time (35 hours) at 40 hours. What’s more, it leaves the parties free to provide for a shorter or longer working week, in compliance with the collectively agreed maximum working week of 48 hours over 12 consecutive weeks, or 50 hours in any one week in the case of regular work, or between 0 and 48 hours in the case of irregular work. Here again, the maximum contractual working hours are higher than those set by the legislator. The NCC stipulates that the individual employer is obliged to pay overtime or have it recovered under the conditions set out in article 147 of the agreement. Overtime refers to hours actually worked in excess of the 40-hour working week.253 Article L. 3121-30 of the French Labour Code, which states that overtime may be worked up to an annual quota and that hours worked in excess of this quota give entitlement to compulsory time off in lieu, does not apply to employees of private individual employers.254 According to the national collective agreement for private individuals working as employers, in the case of regular working hours, overtime may not exceed an average of 8 hours per week calculated over any period of 12 consecutive weeks, without exceeding 10 hours in the course of the same week. Overtime worked on a regular basis and provided for in the employment contract is paid on a monthly basis. In the event of irregular working hours, the employee may work a maximum of 48 hours per week. Overtime is paid on a monthly basis, or recovered within 12 months of being worked, in accordance with the conditions laid down in the employment contract. Overtime is paid or recovered at a rate of 25% (for the first 8 hours) and 50% (for overtime in excess of 8 hours).

6.1.2.1.2.3 Daily and Weekly Rest Periods

A number of public policy provisions apply to rest periods.

The daily rest period must be at least 11 consecutive hours, unless there is a collective agreement or an emergency.255 It is possible to derogate from this requirement by means of a collective agreement at company or branch level, under conditions laid down by decree, for activities where there is a need to ensure continuity of service or split shifts (on-call, surveillance and duty activities to ensure the protection of individuals, to ensure continuity of service if the working pattern is that of successive shifts, or in the event of a surge in activity).

Weekly rest is legally guaranteed by the fact that “it is forbidden to have the same employee work more than 6 days a week”.256 Rest is granted on Sundays, except in certain activities where it is granted on a rotating basis to employees employed in activities listed by decree, which include personal services to individuals in their own homes.257 With regard to young workers, the French Labour Code258 stipulates that they must have 2 consecutive days off per week, unless, due to the particular characteristics of the activity which justify it, a company or branch agreement may reduce this rest period to 36 hours. Young workers may not be employed on public holidays or festivals recognised by law.

Collective bargaining rights relate essentially to the Sunday rest day, which is customary in this sector and can therefore be considered as an additional constraint requiring special collective bargaining treatment.

This is the approach taken by the NCC for establishment and services for Maladjusted and Disabled persons of 1976, Titre IV (not extended). Taking into account the needs of the service and after consultation with the staff representative bodies, the organisation of the working week is established in accordance with the following principles: working hours are distributed in such a way as to cover all needs resulting from the organisation of care or educational or social work, on a full-time or part-time basis, and from the need to ensure their continuity as well as the safety and well-being of users, including at night, on Sundays and public holidays; - a duty roster specifies for each establishment the distribution of working hours and days as well as the scheduling of weekly rest days. Staff are informed of this schedule by means of posters in the various workplaces. In the event of an irregular work pattern, the employees concerned will be informed of a provisional timetable, taking into account the foreseeable workload. An irregular work pattern is defined as a schedule that includes the following 2 conditions: irregular working hours depending on the day or week, including evening and/or night shifts; weekly rest periods granted irregularly depending on the week. Variations in working hours due to foreseeable changes in workloads are subject to consultation with staff representative bodies. A notice period of 7 calendar days must be observed.

It is in much the same spirit of continuity of service that the NCC for home help, support, and care services of 2010 (extended) has made provision for work on Sundays and public holidays. In order to ensure the continuity of home help and home care activities, all employees may be required to work on Sundays and public holidays for work relating exclusively to the essential acts of daily life (with reference to legal and regulatory provisions), to the specific support of users and to the continuity of the organisation of the resulting services. The introduction of Sunday work is subject to consultation with the works council or, failing that, the staff representatives, if they exist. a) For weekend shifts: for structures that have introduced this organisation of work for weekends with voluntary employees, the working pattern for Sunday work is a maximum of 3 Sundays worked followed by 1 Sunday not worked. b) For other cases: in other cases, the working pattern for Sunday work may be 1 Sunday worked out of 4 or 1 Sunday worked out of 3 and a maximum of 1 Sunday worked out of 2. In all cases, the working pattern for public holidays is a maximum of 1 public holiday worked followed by 1 public holiday not worked. A Sunday worked or public holiday cannot be followed by an on-call Sunday or public holiday. With the exception of 1st May, which is governed by legal provisions, employees working on Sundays and public holidays benefit from an additional element of remuneration (ECR) as defined in article III.19.2 of this agreement. As far as possible, and in order to enable each employee to reconcile their professional and personal lives, employers: - arrange for employees to work in their sector of activity or in a neighbouring sector; - arrange for the same employee to work for the whole of a Sunday or public holiday; - draw up a quarterly schedule given to each employee indicating the Sundays or public holidays on which they will be required to work, in accordance with the deadline set out in article V.37 of this collective agreement. Employees may refuse to work on 1 Sunday or 1 public holiday no more than twice a year, without their refusal constituting misconduct or grounds for dismissal.

In the NCC for individual employers and home based employment of 2021 (extended), a different approach has been adopted, emphasising the contractualisation of the day of rest with all the related effects in the event of work on that day. The usual day of rest must therefore be included in the employment contract. According to the collective agreement, the weekly rest period must last at least 35 consecutive hours between the last hour worked before the weekly rest period begins and the first hour worked after it ends. This rest period must be provided for in the employment contract and preferably include Sunday. Work on the rest day may only be exceptional and carried out with the written agreement of the employee. If work is carried out, at the employer’s request, on the weekly rest day, it must be paid in accordance with the collective agreement, at the normal rate plus 25%, or compensated by an equivalent rest period plus the same proportion (one and a quarter hours rest for one hour’s work). As for ordinary public holidays, the collective agreement leaves it up to the employer to decide whether or not the employee should come to work on these days. Public holidays worked must be provided for in the written employment contract. Otherwise, work on an ordinary public holiday can only be arranged by mutual written agreement between the parties. Depending on the employer’s choice, if the public holiday is worked, it will be paid at an additional rate of 10% of the salary due. If the public holiday is not worked, it is paid as soon as the employee has worked for the individual employer on the last working day before the public holiday and on the first working day after the public holiday, unless permission for absence has been granted in advance.

6.1.2.1.4 Protection Measures for Pregnant Women

Some agreements, which have no legal obligation to do so, provide for measures to reduce the effective working hours of pregnant women.

This is the case of the NCC for private non-for-profit hospital and nursing establishment of 1951 (not extended) which states that “pregnant women, from the first day of the 3rd month of pregnancy, will benefit from a 5/35 reduction in their contractual working hours. This reduction will be spread over their working days”.

The NCC for home help, support and care services of 2010 (extended) provides for an hourly reduction of 1 hour per day worked without loss of pay at the end of the 3rd month of medically certified pregnancy, for full-time employees. This measure applies to part-time employees on a pro rata basis. By agreement between the employee and her employer, this reduction may be accumulated and taken in the form of a half-day or full day of rest. The NCC provides for minimum daily and weekly rest periods, as well as the daily breaks stipulated in the Labour Code. It specifies that the lunch break of at least 1/2 hour may under no circumstances include travel time related to an operation.

As for the NCC for establishment and services for maladjusted and disabled persons of 1976, Titre IV (not extended), it stipulates that pregnant women (working full-time or part-time) benefit from a 10% reduction in their working week from the beginning of the 3rd month or 61e day of pregnancy, without any reduction in their pay.

6.1.2.2 Regulation of Working Hours in the Public Sector259

Effective working hours are set at 35 hours per week, i.e. a maximum of 1607 hours per year in the 3 civil services. Effective working hours are defined in the same way as in the private sector, with article L.611-1 of the General Civil Service Code referring to article L.3121-27 of the Labour Code. However, in the regional and hospital civil services, specific decrees are adopted, always with reference to the limits applicable to State employees. In each of the civil services, it is possible to take account of the specific hardships to which certain employees are subject or to take account of the specific nature of the tasks performed. Working time is one of the subjects that can be the subject of collective bargaining with local authorities. At this stage of the research project (30 September 2023) we are not aware of any agreements concluded in this sector and in this area.

The decree of 25 August 2000 on the organisation and reduction of working hours in the state civil service260 is the reference standard for the other two civil services. It stipulates that the annual working time may be reduced due to hardship linked to the nature of the tasks and the definition of the resulting work cycles, in particular night work, work on Sundays, staggered working hours, long shifts or arduous and dangerous work.

The decree, as last amended by the decree of 20 November 2020, establishes minimum guarantees for maximum working hours. These maximum working hours are exactly the same as in the private sector, covering the week (48 hours over 1 week or 44 hours over 12 weeks), the day (10 hours, with a minimum rest period of 11 hours), the maximum working day (12 hours) and the daily break. Derogations from these guarantees are only possible (as in the private sector) where there is a need to protect individuals or in exceptional circumstances for a limited period).

The 2000 decree also establishes the possibility of setting periods of on-call duty: a period during which the employee, without being permanently and immediately available to his employer, is obliged to remain at home or nearby in order to be able to intervene to carry out work in the service of the administration, the duration of this intervention being considered as actual working time. The cases in which on-call duty may be used are defined by ministerial decree. Compensation and remuneration for standby duty are specified by decree, with reference to the procedures and rates applicable in government departments.

The possibility of working flexitime is envisaged by the 2000 decree “subject to the requirements of the service after consultation of the social committee of the administration”.

Work may be organised according to reference periods known as work cycles: working hours are defined within the cycle (which may be weekly or annual). These cycles are defined by ministerial decree.

6.1.4.1 Legal Provisions Governing Night Work in the Private Sector

Under French law, night work must be “exceptional”.266 According to article L. 3122-1 of the Labour Code (public order), “it takes into account the imperatives of protecting the health and safety of workers and is justified by the need to ensure the continuity of economic activity or services of social utility”. The law defines night work as work performed over a period of at least 9 consecutive hours, including the period between midnight and 5am. The night period begins no earlier than 9 p.m. and ends no later than 7 a.m.267 In the absence of an agreement, work performed between 9 p.m. and 6 a.m. constitutes night work. The law also defines a night worker as either someone who works at least 3 hours of night work per day at least twice a week as part of his or her normal working schedule, or someone who works a minimum number of hours of night work during a reference period, as defined in the definition of night work (public order).268

A night worker’s working time may not exceed 8 hours, unless the work is carried out in shifts (see rest section below), and the weekly working time may not exceed 40 hours over 12 consecutive weeks (public policy).269 Night workers are entitled to compensation in the form of compensatory rest and, where applicable, pay. All night workers are entitled to regular medical check-ups. When night work is incompatible with imperative family obligations, in particular the care of a dependent person, refusal to perform night work does not constitute misconduct or grounds for dismissal. All these provisions are of public order.

6.1.4.2 Contractual Law on Night Work in the Private Sector

A company or branch agreement may introduce night work, provided that it sets out the reasons for such recourse, the definition of the period of recourse, the compensation, measures to improve employees’ working conditions, measures to facilitate the reconciliation of private and professional life (in particular means of transport), and break times. In the absence of an agreement, and provided that the employer has entered into serious and fair negotiations with a view to concluding an agreement, he may unilaterally, after authorisation from the Labour Inspectorate (which verifies the existence of compensation and breaks), assign workstations to night work (suppletive provision).270 In view of the developments in all the national collective agreements, we will first present the conventional law on night work in institutions (6.1.4.2.1) and then that at the beneficiary’s home, which has special characteristics due to the workplace (6.1.4.2.2).

6.1.4.2.1 Collective Bargaining Agreements on Night Work in Establishments

The NCC for private hospital of 2002 (extended) devotes a very long article to night work, the use of which is justified by the need to ensure continuity of service.271 It should be emphasised from the outset that the industry agreement incorporates certain legal provisions as they stand, and in others has taken advantage of the possibility offered by the law to derogate in peius, going so far as to authorise certain aspects of night work to be organised at establishment level either by collective bargaining or, failing that, by referendum. In this way, the NCC incorporates the law on definitions, medical surveillance, the right to refuse night work on the grounds that it is incompatible with family responsibilities, break times, transport conditions and changes of assignment for pregnant women. On the other hand, the collective bargaining agreement allows the daily working time to be extended to a maximum of 12 hours by company agreement. In the absence of a company agreement, after informing and consulting the works council or, failing that, the staff delegates, or failing that, after consulting the categories of employees concerned, and by anonymous ballot with a majority of the votes cast, the daily working time may be increased to a maximum of 12 hours.

Night workers who are exempted from the maximum daily working time of 8 hours on night shifts must be given equivalent rest time. This equivalent rest time will allow, as part of the work organisation, either an increase in the daily rest period, or an increase in the weekly rest period, or an increase in the rest period over 2 weeks. The only exception to this rule is an equivalent compensatory payment, which ensures appropriate protection for the employee concerned and is provided for exclusively by collective agreement at company or establishment level, where it is not possible to grant this rest. Independently of the hardship allowance for night work, as defined by article 82.1 of the collective agreement, when the night worker within the meaning of article 53.1.2 has worked at least 3 hours per hour, rest time equivalent to 2.50% of each hour worked between 9 p.m. and 6 a.m. will be granted. This time off in compensation may be taken by the day or half-day when the time off acquired represents a day corresponding to the daily working time of the person concerned. In this case, the employee must request it, giving 15 working days’ notice, specifying the date and duration of the rest required. Unless the service requires it, the rest period will be granted on the date requested by the employee. To take account of the particularities of night work, when the Works Council is consulted on the training plan, the conditions of access to professional training for night staff will be examined. All provisions will be made to enable these employees to access training under the same conditions as day workers.

The NCC for private, non-for-profit hospital and nursing establishment (non-extended) of 1951 simply states that

In view of the need to provide continuous care for users and to take account of the arduous nature of night work, the staff concerned benefit from the specific provisions laid down by the branch agreement relating to night work and/or by company or establishment agreements. The employees concerned benefit from article A 3.2.2 of this agreement if they meet the conditions.272

This agreement was supplemented by an agreement of 17 April 2002 on night work (extended) to which the Federation of establishments for the disabled (Fédération des établissements pour personnes handicapées) has signed up, which will therefore apply to all workers in this sector. The agreement justifies the use of night work as follows: “Given the activities of the not-for-profit health, social and medico-social sector, the use of night work is inseparable from the need to provide continuous care for users”. The agreement adopts the statutory night-time working hours (between 9 p.m. and 7 a.m.) and the legal definition of a night worker. However, it opens up an option with regard to night workers: they can also be workers who work at least 40 hours over a period of 1 calendar month during the night shift as part of their normal working hours. The agreement derogates from the French Labour Code by raising the maximum daily working time to 12 hours (instead of 8). In return, if the daily working time exceeds 8 hours, employees will be entitled to a rest period equivalent to the duration of the excess, in addition to the statutory daily rest period of 11 hours. However, the industry agreement stipulates that collective agreements may define sectors where work involves particular risks or significant physical or mental strain, in which night work may not exceed 8 hours in any 24-hour period.

The agreement provides for night work to be monitored by the occupational physician and staff representative bodies. The agreement stipulates that a visit to the occupational physician will be organised prior to the start of night work and renewed every 6 months. The employer will have to transfer the night employee to a day shift, once the occupational physician has established that the employee’s state of health so requires. The occupational physician shall be consulted prior to any major decision relating to the introduction or modification of the organisation of night work.

The agreement establishes a series of protections in various situations. Firstly, it recognises (without any legal obligation) the right of any employee who is medically pregnant or who has given birth, as long as she so requests, to be assigned to a day job for the duration of her pregnancy and during the period of legal postnatal leave when she waives this. If the employer is unable to offer a day job, he must inform the employee or the company doctor, as the case may be, in writing of the reasons for not reassigning the employee. The employee’s employment contract will then be suspended until the start of her statutory maternity leave. Secondly, measures may be taken by establishments and services to make it easier for night workers to combine night work with family and social responsibilities. When night work is incompatible with the following imperative family obligations: looking after a child, caring for a dependent person, the employee may ask to be assigned to a day shift, insofar as a position compatible with professional qualifications is available. For the same reasons, an employee working during the day may refuse an offer of night work, without this refusal constituting misconduct or grounds for dismissal.

Finally, the agreement provides for compensation for night work. The text distinguishes between establishments and services that are subject to collective agreements or agreements that already provide for compensation for night work, in which case night workers will be granted 1 day’s compensatory rest per year starting on the first day of the month. For establishments that do not provide for any compensation, the hours worked at night will give entitlement to compensation in the form of rest.273 Establishments and organisations will be able to reduce part of this compensatory rest by converting part of it into a financial increase of up to 50%. This possibility of converting part of the compensatory rest into a financial supplement will have to take the form of a collective company agreement. In the absence of union representatives, the employer may implement this provision after consulting the staff representatives.

6.1.4.2.2 Collective bargaining Rights on Night Work Performed in the Beneficiary’s Home

In the case of night work performed in the beneficiary’s home, the issues raised are for the most part common, at least in the case of workers employed by establishments, and will therefore be examined simultaneously (6.1.4.2.2.1), while the conditions under which night work is performed by an employee employed by a private employer will be analysed separately (6.1.4.2.2.2). It should be emphasised that given the place occupied by night work in the texts of collective bargaining agreements, this is a question examined with attention, care and precision by the social partners.

6.1.4.2.2.1 Night work in the NCC for Personal Services Companies and in the Ncc for Home Help, Support and Care Services

These two NCCs establish a genuine status for night workers, with protection, compensation, the involvement of the IRP and occupational medicine.

6.1.4.2.2.1.1 Definition of Night Work and Night Workers

The NCC for personal services companies stipulates the principle that “an employee who does not wish to be required to work a period of time considered to be night time must indicate this on his contractual periods of unavailability”. As a result, an employee wishing to return to or occupy a daytime position shall be given priority for the allocation of a job corresponding to his/her professional category or equivalent job in the company.274 Night work is defined as working from 10pm to 7am. However, a company agreement may substitute a period of 9 consecutive hours between 9pm and 6am. The text uses the legal definition of a night worker and adds the possibility of considering as night workers those who work “at least 270 hours in this period over twelve consecutive months”. The text reproduces the legal provisions on maximum working hours, breaks and minimum daily rest periods, and specifies that exceptions may only be made to rest periods and breaks within the limits and under the conditions defined by law. However, in view of the specific requirements of providing a continuous service to vulnerable groups, particularly in the context of night work, the maximum daily working time for night workers has been increased to 12 hours. If the employee is required to work in excess of the 8-hour threshold defined in article L. 3122-6 of the French Labour Code, he or she will be entitled to a rest period equivalent to the time spent in excess of this threshold. This rest is taken as soon as possible after the period worked.

The 2010 NCC for home help, support and care services (extended) defines night worker by also taking the definition from the French Labour Code and adding another alternative definition according to which any employee who performs a minimum number of 78 hours of night work per month on average over 6 months is considered to be a night worker. Employees whose job contributes to ensuring the physical and moral well-being, health and hygiene of people being cared for in their own homes may be assigned to a night shift. Night workers are employees whose jobs fall at least within step 2 of the category employee level 1 of the jobs defined in Title III. The collective agreement provides for 2 types of night work. The first, known as “sedentary night work”, consists of the employee spending all or part of the night with a user whose state of health or situation requires continuous actual work in order to respond to any requests. The second, known as “Itinerant night work”, involves the employee working one or more shifts with one or more users whose state of health or situation requires acts of care, nutrition or hygiene during the night working hours defined in the agreement, without the employee spending the night in the home of the person being cared for.

The branch agreement introduces exceptions to the legal provisions. For example, the length of actual night work is increased from 8 hours to 10 hours. In return, when the actual working time exceeds 8 hours, employees are entitled to a rest period equivalent to the duration of the excess. In addition, as the night time slot is 9 hours, when the employee actually works 10 hours, the 10th hour is considered as an hour of night work and therefore benefits from the relevant compensation. This rest time is added either to the daily rest time of 11 hours provided for in the Labour Code or to the weekly rest time.

Another derogation, this one in favour of the employee, concerns the actual weekly working time for night workers, which, calculated over a period of 12 consecutive weeks, may not exceed 40 hours. In any event, night workers may not work more than 5 consecutive nights and must be entitled to a weekly rest period. The agreement is based on the French Labour Code as regards breaks. Employees are entitled to a 20-minute break once their actual working time reaches 6 hours. Break times during which employees remain permanently at the employer’s disposal are counted as actual working time.

6.1.4.2.2.1.2 Protection for Night Workers

The NCC for personal services companies provides for enhanced medical surveillance of night workers, without providing any further details. In companies with more than 50 employees, the social and economic committee (or staff representatives) is involved in monitoring night work.275 In addition, by virtue of the protection of social and family life,

an employee working during the day may refuse an offer of night work, without this refusal constituting misconduct or grounds for dismissal. For the same reasons, any night worker may ask to be assigned to a day shift because of compelling family obligations. The employer must respond within a maximum of one month to any request for a change of assignment from a night shift to a day shift. As stipulated by law, the NCC must provide for transport arrangements, which is a point of attention in the case of work carried out at the beneficiary’s home. In order to facilitate the transport of night workers, work schedules are organised in such a way as to allow employees who do not live at home or who do not have a motorised land vehicle to use public transport. Exceptionally, and only with the employer’s authorisation, a taxi, the cost of which will be borne by the employer, may be requested by an employee who no longer has any means of transport to return home.

With regard to pregnant women working night shifts who wish to take up a day shift, the NCC incorporates the legal provisions on the rights of pregnant women in relation to night shifts and adds, in view of the specific features of the sector and its work organisation, that if the employer is unable to offer another job, it shall inform the employee and the occupational physician in writing of the reasons preventing the employee from being reclassified as a day shift. The employee’s employment contract is then suspended until the date of commencement of the statutory maternity leave and possibly during the additional period following the end of this leave in application of the above provisions. During this period, regardless of the employee’s length of service, she will receive guaranteed remuneration consisting of a daily allowance paid by social security and additional remuneration payable by the employer, in accordance with the same terms and conditions as those set out in the inter-professional agreement of 10 December 1977 appended to the law on the monthly payment of wages of 19 January 1978. Finally, the NCC stipulates equality between men and women and access to training for night workers:

in view of the specific nature of night work, the employer must ensure that the conditions of access to training and its organisation are adapted to enable night workers to benefit from training courses. Where appropriate, the employer may propose temporary changes to the employee’s working hours.

The 2010 NCC for home help, support and care services (extended) lays down 2 prerequisites for any work in the context of “sedentary night work”. The first is for the employer to check that an isolated and sanitary area is available to the employee. The second requires the employer to set up an organisation to ensure that the employee can always contact a contact person. This permanent contact may be organised in the form of an on-call duty for the contact person. In justified cases, the employer will work with the CHSCT, or failing that the works council or staff representatives if they exist, on ways of ensuring the safety of night work. Before introducing night work, the employer must first consult the works council and the health, safety and working conditions committee, or failing that, the staff delegates if they exist. The employer must then inform all employees and propose an amendment to the employment contract for those employees affected by night work. In addition, the company doctor must be consulted before any decision is taken to introduce night work. All night workers are entitled to a medical examination before being assigned to a night shift and every 6 months thereafter.

The NCC for home help, support and care services de 2010 (extended) stipulates measures designed to make it easier for employees to combine night work with family and social responsibilities. Thus, in accordance with legal and regulatory provisions, when night work is incompatible with imperative family obligations (childcare, care of dependent persons), an employee working during the day may refuse an offer of night work without this refusal constituting misconduct or grounds for dismissal. Similarly, because of the pressing family obligations set out above, a night worker may request to be assigned to a day shift, provided that a position compatible with his or her professional qualifications is available. In order to enable each employee to reconcile family and professional life, a schedule is drawn up and given to each employee, indicating the weeks in which he or she may be required to work at night. The agreement prohibits pregnant women or women who have recently given birth from working nights, provided they have provided a medical certificate.

6.1.4.2.2.1.3 Compensation for Night Work

Night work is considered to be a special hardship and gives rise to compensation fixed by decree in the public sector and by national collective agreement in the private sector. It should be noted that, with the adoption of the Social Security Financing Act for 2024, the government has increased the financial increase for night work. As a result, non-medical staff (nurses and care assistants in public hospitals and nursing homes, and in private not-for-profit establishments) will see their night-time pay increased by 25% compared with the daytime rate, and the fixed rate paid for work on Sundays and public holidays increased by 20%: see decree no. 2023-1238 of 22 December 2023 on compensation for night work in the hospital civil service, applicable from 1st January 2024. This decree repeals decree no. 88-1084 of 30 November 1988 relating to the hourly allowance for normal night work and the additional allowance for intensive work.

In addition, under the NCC for personal services companies, night workers are entitled to compensatory rest. Each hour worked as part of the night shift entitles the worker to 5% compensatory rest. Compensatory rest must be taken every 7 hours for a full-time employee and at least 4 hours for a part-time employee, within a period of 12 months during the employee’s normal working hours. Compensatory rest not taken at the end of the reference period because it is less than the equivalent of one day’s rest is carried over to the following half-year. Requests for compensatory rest must be submitted to the employer 1 month in advance. Night workers are also entitled to a 5% increase in their hourly rate for each hour worked as part of the night shift (suggested by law). These increases in hourly rates for night work cannot be combined with the increase for work on Sundays. As a result, hours worked on Sunday nights entitle the employee exclusively to the most advantageous financial increase, either that resulting from Sunday work or that resulting from night work. The increase for night work is cumulative with the increase in the hourly rate for work on a public holiday.

6.1.4.2.2.1.4 Contractual Treatment of Night-Time Presence

The NCC for personal services companies includes specific clauses for night-time presence, which does not necessarily require work: some services do not require continuous work or active watchfulness on the part of the employee with the person being cared for. A system of equivalence has been set up called “night presence”. An employee provides a night presence when he or she is required to remain in the home of the beneficiary of a service, at night, and is likely to intervene under certain conditions for tasks relating to the benchmark jobs of life assistant… Two conditions are required for recognition of night work and application of the night work equivalence scheme:

the need for the employee to sleep in the home of the beneficiary of the service (in a separate, suitably equipped room); a real division of his/her time on this occasion between periods of inaction (without intervention) and periods of action (with intervention), it being understood that this division will be precisely measured taking into account the criteria defined in article 10.2 of this agreement. It is important to specify that in any event, particularly with regard to respect for rest periods, any night presence must be compatible with a day job in order to enable the employee to work full time. The system of equivalence does not prevent a worker from being recognised as a night worker. Except with the employee’s express agreement, any change to the schedule during night working hours must be made with 7 days’ notice. In this respect, refusal to change night working hours, even in an emergency, cannot constitute misconduct or be considered as an absence. The night-time presence of an employee as defined in the previous article may not be less than 10 continuous hours. An employee may not be present at night for more than five nights over a period of seven calendar days. If an employee’s presence at night requires continuous and permanent vigilance on his part, the time spent in action and the time spent in inaction cannot be distinguished, and there can therefore be no question of counting hours of equivalence. All hours of presence under these conditions are treated as actual working time, with the requirements of night work,

which means that the employee’s employment contract must be amended.276 Equivalent hours worked by an employee when present at night are counted and remunerated.277 This count must be made on a weekly basis and systematically brought to the employee’s attention by any means.278 The NCC imposes a duty of vigilance on the employer, who must check the progress of night work by contacting the employee concerned at least once a month and visiting the customer at least once a quarter.

Under the 2010 NCC for home help, support and care services (extended), the cost of transporting the night worker from his or her home to the home of the person or persons being assisted is borne by the employer. Depending on the resources of the employing organisation and the specific nature of the work, this cost is covered either by the payment of mileage allowances, or by the provision of a vehicle, or by the reimbursement of public transport. Night workers are entitled to additional remuneration or compensatory rest, the terms of which are defined after consultation with the social and economic committee, if one exists. However, hours worked during the night on a Sunday or public holiday give entitlement to the compensatory rest provided for in this article and to the additional element of remuneration linked to work on a Sunday or public holiday.

6.1.4.2.2.2 Night Work in the NCC Individual Employers and Home Based Employment

The agreement provides for 2 types of night work. Here again, it should be remembered that the legal provisions on night work do not apply. The partners are free to regulate this type of work organisation. They do, however, set limits and conditions to provide a minimum of protection for the worker concerned.

Night presence means that the employee is obliged to sleep on the premises in a separate room and in decent conditions,279 without having to do any of the usual actual work, while being required to intervene if necessary as part of his duties. Night work must be provided for in the contract. It is compatible with daytime work. A night is between 8pm and 6.30am. The parties may, however, adjust this time slot by bringing forward the start of the night shift and/or delaying the end of the night shift, up to a total limit of one and a half hours. Night time may not exceed 12 hours. The night shift may be scheduled for more than 5 consecutive nights, subject to compliance with the weekly rest period and the following cumulative conditions: the number of night shifts carried out by the employee must not exceed 4 shifts every night; it is the result of a request made by the employee and/or the individual employer with a view to meeting specific needs requiring a night shift, due in particular to the employee’s state of health and/or dependency, disability, age and/or social and/or family isolation; the parties have formalised their agreement in writing. The employee’s refusal to work more than 5 consecutive nights may not constitute grounds for termination of the employment contract. The collective agreement expressly states that night work is not taken into account when determining the actual working time. However, if the employee is required to work at least 4 nights in a row, the hours worked during the night must be reclassified as actual working hours and the employment contract must be revised. The hours and conditions of night watch must be set out in the employment contract. Night watch is remunerated in accordance with the collective agreement by means of a flat-rate allowance. The amount of this allowance may not be less than 1/4 of the contractual salary paid for equivalent actual working time. This allowance will be increased according to the nature and number of interventions. If on certain nights the employee is called upon to intervene: at least 2 times, the fixed allowance is due for the night during which the employee intervenes, is increased to 1/3 of the contractual salary paid for equivalent actual working time; at least 4 times, the allowance due for the duration of the interventions corresponds to the contractual salary paid for equivalent actual working time. The flat-rate indemnity for the remaining nights is equal to 1/3 of the contractual salary paid for equivalent actual working time. If the employee works every night and at least 4 times, all night hours are considered as hours actually worked and must be paid at the gross hourly rate stipulated in the contract. The contract must then be revised.

Night nursing hours. Employees working as night nurses remain close to the patient and do not have their own room (they are likely to intervene at any time). This function is not compatible with a full-time day job. The hours worked may not exceed 12 consecutive hours. The collective agreement stipulates that the function of night nurse is exclusively applicable to employees in the benchmark jobs in the adult sector “Life assistant C” and “Life assistant D”. The hours and conditions of night duty must be stipulated in the employment contract. Night watch is remunerated in accordance with the collective agreement by means of a flat-rate allowance. The amount of this allowance may not be less than 1/4 of the contractual salary paid for equivalent actual working time. This allowance will be increased according to the nature and number of interventions. If on certain nights the employee is called upon to intervene: at least 2 times, the fixed allowance is due for the night during which the employee intervenes, is increased to 1/3 of the contractual salary paid for equivalent actual working time; at least 4 times, the allowance due for the duration of the interventions corresponds to the contractual salary paid for equivalent actual working time. The flat-rate indemnity for the remaining nights is equal to 1/3 of the contractual salary paid for equivalent actual working time. If the employee works every night and at least 4 times, all night hours are considered as hours actually worked and must be paid at the gross hourly rate stipulated in the contract. The contract must then be revised. For employees working as night nurses, remuneration is calculated on a basis that cannot be less than the gross hourly wage stipulated in the employment contract.

6.1.5.1 Paid Annual Leave

Employees are entitled to 2.5 working days of paid annual leave per month of actual work or equivalent period during the reference period. Leave may be split into periods of more than 12 days. The main leave taken between 1st May and 31 October each year must be at least equal to 12 consecutive working days, which may not be split, and must not exceed 24 working days. Collective bargaining rights in the care sector will mainly consist of either increasing the number of days of paid leave, in particular on the basis of seniority, or organising and compensating for the splitting of paid leave by adopting the supplementary legal provision on the granting of additional leave in the event of splitting.280

The NCC for private hospital of 2002281 (extended) and the NCC for personal servicies companies (extended) of 2012 reproduce, without modifying them either favourably or unfavourably, the legal provisions relating to the duration of leave, its calculation, the period during which leave is taken, and the terms, conditions and compensation for fractioning.

On the other hand, the NCC for establishment and services for maladjusted and disabled persons of 1966282 (not extended) provides that the annual paid leave of permanent salaried staff will be extended by 2 working days for each period of 5 years of seniority in the company, up to a maximum of 6 days. In addition, if, for service reasons, and with the agreement of the employee concerned, annual leave has to be granted outside the normal period, the statutory period will be extended by 3 working days per calendar year, which is more favourable than the relevant legal provision.

The NCC for private non-for-profit hospital and nursing establishment of 1951 (not extended) provides for exceptional paid leave for staff in establishments for disabled or maladjusted children or adults, in which the decentralised bonus is equal to 3%, benefit during each of the three quarters that do not include the annual leave from additional paid leave to be taken in the best interests of the service. The duration of this additional paid leave, which for each of the 3 quarters may amount to 6 consecutive working days for educational staff and 3 consecutive working days for other staff, is calculated in proportion to the actual time worked during the quarter.

The NCC for individual employers and home based employment of 2021 (extended) takes up the legal right to holidays, which once again brings these workers back into the fold of ordinary law, for whom the legislator, without explicitly excluding them, does not expressly mention paid holidays among the provisions applicable to domestic workers. Thus, the calculation and number of days of holiday are those of ordinary law (2.5 days per month worked). And in the event of split leave, the agreement recognises the right to additional leave such as that provided for in the Labour Code.

Civil servants in active employment are entitled to annual leave equal to five times their weekly service obligations for each completed year of service. This period is assessed in terms of the number of days actually worked. An additional day’s leave is granted to any employee whose number of days of leave taken outside the period from 1st May to 31 October is five, six or seven days; a second additional day’s leave is granted when this number is at least equal to eight days. Absence from work may not exceed thirty-one consecutive days, except in the case of civil servants and State employees who are exceptionally authorised to combine their annual leave to travel to their country of origin or to accompany their spouses travelling to their country of origin.

6.1.5.2 Other Types of Leave

A distinction should be made between other private-sector leave covered by the provisions of the Labour Code and collective agreements (6.1.5.2.1) and public-sector leave covered by the General Civil Service Code (6.1.5.2.2).

6.1.5.2.1 Other Forms of Leave in the Private Sector

The Labour Code contains a wealth of provisions introducing other forms of leave: child-rearing leave, teaching and research leave, vocational training leave, trade union training leave, mobility leave, parental leave, leave to care for relatives, representation leave, family solidarity leave, international solidarity leave, parental leave, leave to acquire nationality, natural disaster leave, business start-up leave, sick child leave, leave for family events, sabbatical leave (leave for family events, family solidarity leave, leave to care for relatives,283 sabbatical leave, leave for associative, political or activist commitments, mutualist leave. Collective bargaining agreements applicable in the care sector are also covered (only those benefits that are strictly collective bargaining and therefore provide an added benefit to the employee will be discussed here).

It should be noted that the NCC for personal services companies of 2012 and the NCC for home help, support and care services of 2010 are the only agreements that do not include any specific clause on other leave.

The NCC for establishment and services for maladjusted and disabled persons of 1966, Title IV (not extended) provides for benefits in addition to those provided for by the law.284 Additional and exceptional leave is granted, with justification, to staff for family-related events (between 1 and 5 days depending on the event). In addition to paid annual leave, employees are entitled to up to 21 days’ paid exceptional leave per 3-year period to take part in training courses, advanced training sessions and professional conferences. Exceptional unpaid leave for personal reasons may be granted on an exceptional basis, if service requirements allow, and on justification of the reasons for the request, up to a maximum of 3 months. Such leave may, at the option of the person concerned, either be deducted from annual leave accrued on the day the leave is taken, or granted without pay. In the event of work stoppage due to illness, employees who have been with the company for 1 year will receive, after deduction of the daily allowances received under the social security and supplementary provident schemes: for the first 3 months, the net salary they would normally have received without interruption of activity; for the following 3 months, half the net salary corresponding to their normal activity. The same benefits apply in the event of leave due to an accident at work or occupational illness. Lastly, employees who have completed one year’s service with the company will be entitled, for the duration of their statutory maternity leave or statutory adoption leave, to additional allowances so that, taking into account social security allowances, they receive the equivalent of their net salary.

The NCC for private hospital of 2002, Title VI (extended) provides for leave for family events (between 2 and 5 days), leave for sick children (12 working days per employee or for the couple); in the event of maternity leave, the payment of additional allowances up to the level of salary and, from the end of the 2nd month of pregnancy, a 10% reduction in the daily working time, with their pay being maintained. Paternity leave of 11 days gives rise to the payment of an additional allowance, leave to care for a close relative (12 months). For all other types of leave (parental leave, international solidarity leave, sabbatical leave, etc.), the collective agreement refers to ordinary law.

The NCC for private non-for-profit hospital and nursing establishment (not extended) also includes more favourable provisions for certain other types of leave. This is the case for leave for a sick child (1 to 4 days per child per year), which is paid as actual working time and also benefits cohabitees and PACS employees treated as spouses. This is also the case for leave for family events285 on justification, paid as actual working time. Exceptional short-term leave for personal reasons may be granted if the needs of the service permit and if the reasons for the request are justified, but it is either deducted from the annual leave earned or unpaid. Unpaid leave may be granted for a maximum of 3 months, renewable once. With regard to maternity and adoption leave, employees with 1 year’s seniority will continue to receive their salary.

The 2021 NCC for individual employer and home based employment includes a series of other types of leave which are worth highlighting, since the relevant labour legislation does not in principle apply. By mimicking other national collective agreements and drawing inspiration from the legal provisions, the signatories of the NCC have thus achieved a rapprochement or even alignment with other employees in the sector from the point of view of social benefits. Firstly, there is leave for family events,286 paid leave for family events, with salary maintained and treated as actual working time for the purposes of calculating paid leave and seniority. The NCC specifies that when leave for family events is compensated by the social security system, the individual employer maintains the employee’s salary after deduction of the daily allowances paid, so that the employee does not suffer any loss of salary during the period of absence. If the employee receives the daily allowances directly from the social security scheme, he must provide the individual employer with proof of the amount of these allowances without delay. There is also leave for the Defence and Citizenship Day, for which salary is maintained and which is treated as time actually worked. Employees are also entitled to leave for a dependent child (2 working days, up to a maximum of 30 per year), for the acquisition of French citizenship. In addition to this paid leave, there is other unpaid leave which is not counted as actual working time: leave on personal grounds if authorised by the employer;287 unpaid leave of 3 working days for a sick child, separate from leave for a family event, which is not counted as actual working time; unpaid parental presence leave,288 which is not counted as actual working time for the purposes of determining entitlement to paid leave, but is taken into account for the purposes of determining entitlement to seniority.

6.1.5.2.2 Other Public Sector Leaves

The General Civil Service Code distinguishes between leave of absence and other forms of leave. Civil servants289 and public employees290 are entitled to leave of absence in connection with parenthood and certain family events. These absences are not included in the calculation of paid leave, in the same way as the leaves of absence provided for in the hospital and local authority civil services.291 The Civil Service Code contains a number of provisions relating to other types of leave, which may be regarded as special social benefits associated with civil service status.

Firstly, there is leave linked to parental and family responsibilities in addition to parental leave. The Civil Service Code makes a number of references here to the Labour Code (in relation to birth leave, maternity leave, adoption leave, paternity leave,292 leave to care for relatives).293 The Code adds other forms of leave: in the event of the child’s hospitalisation or the mother’s death during her maternity leave;294 for parental presence295 in the event of an accident or a particularly serious disability of the child. The Code also provides for unpaid family solidarity leave296 for a period of 3 months, renewable once, which is treated as actual work and cannot be deducted from paid leave.297

The Civil Service Code also contains lengthy provisions on leave related to civic activities. The first is unpaid citizenship leave of 6 working days per year, which is treated as a period of actual service and cannot be deducted from annual leave. Then there is left to represent an association or mutual society, granted subject to service requirements, with pay, for 9 working days a year.298 There is also left prepare and supervise cohesion stays as part of the universal national service, paid subject to service requirements for a period of up to sixty days over a period of twelve consecutive months. Finally, there is paid leave to complete a period of military service, military training or activity in an operational reserve.

6.2.1.1 The Employer’s Obligation to Ensure the Safety and Health Protection of Employees

Employers have a legal obligation under Article L. 4121-1 of the French Labour Code to guarantee the safety and health protection of their employees. This obligation implies the implementation of preventive measures, information, training and appropriate means to ensure safety at work. Failure to comply with this obligation may constitute inexcusable fault on the part of the employer in the event of an accident at work or occupational disease.

Until 2015, employers were bound by an “obligation de sécurité de résultat” (an obligation to ensure safety at work), considering any work-related incident to be inexcusable misconduct if the employer was aware of the danger and had not taken the necessary measures. However, following reversals in case law in 2002, the Court of Cassation redefined inexcusable fault as exceptionally serious fault with an intentional element. The “Air France” ruling in 2015 established that the employer does not breach its legal obligation if it proves that it has taken all the measures provided for by the Labour Code, thus abandoning the contractual basis of the obligation of safety of result. This case law was followed by the Second Civil Chamber of the Court of Cassation in 2020.

Failure to comply with the safety obligation exposes the employer to criminal and civil liability, underlining the importance of taking adequate measures to ensure the safety and health of workers in the workplace.

The employer’s general health and safety obligation is broken down into various obligations. There are preventive measures (6.2.1.1.1), the introduction of a personal arduousness account for workers (6.2.1.1.2), the obligation to introduce an individual prevention sheet (6.2.1.1.3), the general obligation to inform and train employees about risks (6.2.1.1.4), the obligation to prevent and take action against moral and sexual harassment and other sexist behaviour (6.2.1.1.5), the obligation to check the amplitude and workload of employees on fixed working days (6.2.1.1.6) and the obligation to provide training and specific adaptation measures for the safety of workers (6.2.1.1.7).

6.2.1.1.1 Prevention Initiatives

The employer’s legal obligation to ensure health and safety means that preventive measures must be taken to protect workers’ health and safety, as set out in articles L. 4121-1 and L. 4121-2 of the French Labour Code. In order to ensure the safety and protect the physical and mental health of workers, the employer must put in place the following measures:

Actions to prevent occupational risks. Information and training initiatives. Setting up an appropriate organisation and resources.

These measures are dynamic, and the employer must ensure that they are adapted to take account of changing circumstances and aim to improve existing situations.

Article L. 4121-2 of the French Labour Code sets out nine objectives for preventive measures in the field of health and safety at work. These objectives are: the avoidance, assessment and reduction of risks, the adaptation of work to people, taking account of technological developments, the replacement of dangerous elements, prevention planning, giving priority to collective protection measures, and the communication of instructions to workers.

6.2.1.1.2 The Introduction of a Personal Arduous Work Account for Workers

The personal account for the prevention of arduous work (C2P)304 has been set up to take account of occupational risks. It covers ten risk factors, such as night work, manual handling of loads and mechanical vibrations. The employers concerned must assess and prevent these risks by means of a Document unique d’évaluation des risques professionnels —DUER— (Single occupational risk assessment document )305 or an action plan. Employees exposed to these risks (according to certain thresholds)306 can open a personal account for the prevention of arduous work, and employers must pay a basic arduous work contribution307 of 0.01%. An additional contribution of 0.2% or 0.4% applies depending on the level of exposure. Failure to comply with these obligations exposes the employer to penalties in accordance with ordinary labour law.

6.2.1.1.3 The Obligation to Draw up an Individual Prevention Sheet

In France, seconded and temporary workers are subject to traceability thanks to the individual prevention sheet.308 This does not apply to employees of private employers.309 In France, seconded and temporary workers are subject to traceability thanks to the individual prevention sheet. This does not apply to employees of individual employers and homebased emplyment. In fact, for employees in this unified branch, the law, under the terms of article L.4625-2 of the Labour Code, has opened up the possibility of providing, by means of an extended branch collective agreement, for derogations from the rules relating to the organisation and choice of the occupational health and prevention service, as well as to the procedures for monitoring the state of health of workers. These derogations are necessary in view of the singular nature of the sector resulting from:

the high number of employees with multiple employers. the high number of employees working part-time. the diversity of jobs performed by employees in the sector. the inviolable private home which constitutes the workplace. the fact that the employer is a private individual and not a company.

The personal account for the prevention of arduous work and the individual prevention sheet are integrated into the assessment of occupational risks via the occupational risk assessment document, drawn up by collective agreement at branch level or in accordance with approved occupational benchmarks. The occupational risk assessment document enables the employer to determine the conditions of hardship to which each worker is exposed, thereby enhancing the reliability of individual declarations to the Caisse nationale d’assurance vieillesse.

6.2.1.1.4 The General Obligation to Inform and Train Employees About Risks310

The employer is obliged to provide information to employees on health and safety risks at work, taking into account the size of the company, the nature of the activity and the risks identified.311 This information can be communicated via internal notes or appropriate signage, during working hours.312 It covers preventive measures, the role of the occupational health service, the provisions of the internal regulations, and instructions in the event of fire,313 with the collaboration of the occupational physician.314

6.2.1.1.5 The Obligation to Prevent and Take Action Against Moral and Sexual Harassment and Other Sexist Behaviour

Employers have an obligation to prevent and remedy the mental distress of their employees,315 an obligation that also covers public sector employees.316 Case law establishes that the employer’s safety obligation takes precedence over the reinstatement of a protected employee in the event of dismissal for harassment.317 Employers must ensure the physical and mental health of their employees318 by implementing preventive measures in accordance with the French Labour Code.319 They are liable if they fail to comply with their obligations and do not take immediate steps to put an end to situations of moral violence.320

6.2.1.1.6 The Obligation to Check the Working Hours and Workload of Employees on Fixed-Term Contracts

In a ruling handed down in March 2022,321 the French Supreme Court (Cour de cassation) ruled that the employer must guarantee a reasonable workload and a balanced distribution of work over time in order to protect the employee’s health. In this case, an occupational physician argued that his employer had failed to comply with his safety obligation by ignoring signals of stress and problems of work overload, despite prior warnings. The employer argued that its duty had been fulfilled, but the Court reiterated the importance of annual interviews to discuss workload and its impact on the employee’s personal life, stressing that the absence of such interviews also constitutes a breach of the employer’s safety obligation.322

6.2.1.1.7 The Obligation to Provide Training and Special Adaptation Measures for Worker Safety

The employer is required to provide practical and appropriate safety training for all workers, particularly on recruitment, when changing jobs or techniques, when changing working conditions, when returning to work after an absence of more than 21 days, and whenever necessary.323 In principle, this training takes place in the workplace324 and must be repeated periodically.325 Its aim is to make workers aware of the risks and preventive measures, and to promote safe behaviour.326 Time spent on training is considered as working time.327 In addition, in the event of serious accidents or repeated occupational illnesses, the employer must organise appropriate training,328 including for employees on fixed-term or temporary contracts working in high-risk jobs.329 The Social and Economic Committee has a consultative role in the organisation and monitoring of such training.330 Funding is the responsibility of the employer,331 and there is now a “prevention passport”332 for health and safety at work training.

6.2.1.2 Obligations of Employees

Every worker has an obligation to take care of their own health and safety, as well as that of others affected by their actions or omissions. This responsibility implies that the employee must comply with the employer’s instructions, in accordance with his or her training and abilities.

Employee breaches of this obligation are assessed in the light of the employer’s obligations in terms of information, training and working conditions. Penalties for breaches, such as failure to comply with the safety instructions in the internal regulations or training, are determined by the disciplinary rules of the aforementioned regulations. Serious breaches may be grounds for dismissal. None of this affects the employer’s responsibility for the safety of workers.333 The employer must also take account of the worker’s abilities when assigning health and safety-related tasks in line with the company’s activities.334

6.2.1.3 Occupational Health and Safety Obligations Created by the COVID-19 Pandemic

In light of the COVID-19 epidemic, employers need to update their occupational risk assessment documents to take account of the risks associated with transmission of the virus within the company. This involves identifying work situations where the conditions for transmission of the virus are present, such as close contact without protection, and putting in place appropriate preventive measures.335

Employees’ right of withdrawal does not apply automatically in the event of a pandemic or epidemic, as it relates to specific work situations. If the employer has implemented all the protective measures provided for by law and national recommendations to ensure the health and safety of workers, the right of withdrawal should not be exercised.336 Similarly, other situations such as a heatwave do not automatically justify the exercise of the right of withdrawal.337

6.2.2.1 The Employee’s Right to Warn of and Withdraw from Work in the Event of Serious and Imminent Danger

The right of withdrawal is a fundamental right granted to employees, enabling them to withdraw from a work situation presenting a serious and imminent danger338 to their health or life,339 without incurring sanctions. To exercise this right, the employee must first or simultaneously alert the employer to the risk.

Employees also have a duty to warn.340 But this subjective assessment of the danger is sovereign and specific to the employee. As a result, its use is optional.341 The right to withdraw may be exercised individually or collectively, provided that each employee considers that he or she is in danger.342 During the exercise of this right, no deduction of salary or sanction is authorised,343 failing which the disciplinary sanction will be annulled.344

However, the right of withdrawal is not always legitimate and its exercise is not automatic. Abusive use may result in disciplinary action,345 or even dismissal.346 Moreover, unlike the right to withdraw, whistleblowing in public health and environmental matters does not give rise to withdrawal from work,347 but it does offer whistleblowers legal protection against any form of discrimination or sanction resulting from their reporting.348

6.2.2.2 Health and Safety at Work and the Right of Participation or Expression of Workers

In terms of workers’ right to information and training, the employer’s obligation is perfectly symmetrical with the employees’ right to be informed and trained. The Social and Economic Committee (CSE) also has the right to issue a warning in the event of serious and imminent danger, triggering an immediate investigation so that appropriate measures can be taken.349 In the event of disagreement with the employer, specific procedures are provided for.350

Any employee representative on the CSE who becomes aware, particularly through the intermediary of an employee, that there is a serious risk to public health or the environment within the company must immediately alert the employer. The alert is recorded in writing in the alert register. The employer examines the situation jointly with the staff representative on the CSE who forwarded the alert and informs him/her of the action he/she intends to take.351 The CSE is informed of employee alerts that have been forwarded to the employer, the action taken on them and any referrals to the Prefect, who is notified either if there is disagreement with the employer as to the validity of the alert forwarded, or if no action is taken on the alert within a period of one month.352

Since 2010, certain companies have been legally obliged to negotiate and sign a branch agreement or an action plan for the prevention of occupational risks and arduous work.353 The obligation to do so depends on criteria such as the size of the company, the proportion of employees exposed or the number of accidents.354 The355 agreements or action plans are based on a diagnosis of the risks and cover ten occupational risk factors,356 according to criteria relating to physical constraints, exposure to dangerous chemical agents or particular work patterns.357

6.2.2.3 The role of the Social and Economic Committee (CSE)358 and Professional Branches in Negotiating Agreements on Occupational Risks and Arduous Working Conditions

According to the French Labour Code,359 the Social and Economic Council is involved in preparing safety training courses. It is generally consulted on matters relating to health, safety and working conditions. This responsibility also extends to temporary workers, trainees and any person placed in any capacity under the authority of the employer.360 More specifically, the CSE plays an essential role in promoting safety training and the prevention of occupational risks. It is consulted on these matters during the annual consultation on vocational training.361 In addition, the CSE is involved in setting up and monitoring a risk prevention action plan.362 In companies with more than 300 employees, it receives a detailed report on the safety training planned for new employees, workers changing jobs and temporary workers.

As for the professional branches, in France they play a crucial role in preventing arduous work. They draw up collective branch agreements that must be extended in accordance with articles L. 4163-2 and L. 4163-4 of the Labour Code. In addition, they create industry-wide occupational benchmarks to assess workers’ exposure to occupational risks above thresholds set in advance, taking account of protective measures. These benchmarks enable employers to declare the annual exposure of workers and identify the appropriate means of prevention. The benchmarks may cover the entire branch or focus on specific fields of activity. They are subject to joint approval by the Ministers of Labour and Social Affairs. In the event of an obvious error, the authorities may work with the industry to adjust the reference framework for preventing arduous working conditions.

6.3.1.1 General Principles

The right to training is governed by four main principles: lifelong learning (6.3.1.1.1), lifelong vocational guidance (6.3.1.1.2), equal access to training (6.3.1.1.3) and access to vocational certification (6.3.1.1.4).

6.3.1.1.1 Lifelong Learning

Lifelong training is a national obligation:

it aims to enable all individuals, regardless of their status, to acquire and update the knowledge and skills that will facilitate their professional development, and to progress to at least one level of professional qualification during their working life. It is a key factor in securing career paths and promoting employees.369

To this end, everyone, regardless of their employment status (employee/self-employed/liberal), has a personal training account from the moment they enter the labour market.

The NCC for home help, support and care services of 2010 (extended) devotes an entire chapter to lifelong training, in which it spells out the objectives of implementing specific measures for unskilled jobs and measures to inform staff about all the training and development opportunities available, particularly for employees who have been working in the sector for more than 15 years, and to generalise the practice of professional interviews. In this respect, the collective agreement lays down the principle that

all unqualified employees should be offered a job-related training course leading to a professional qualification or diploma within a maximum of 3 years of being recruited, subject to sufficient funding.

The 2012 NCC for personal services companies attributes to vocational training the objective of enhancing the sector’s specific know-how to “motivate employees and ensure the construction of a professional identity”.

The inter-branch agreement of 27 November 2020 for individual employers and home based employment 2021sets out the objectives of the sector’s professionalisation policy. The aim is to respond to the challenges facing the sector in terms of the growing needs of society in terms of home support, the acquisition of new skills, promoting the attractiveness and diversity of the professions in the professional sector, ensuring that employees’ career paths and employment are secure, and supporting forward-looking management of jobs and skills. All other care workers are subject to the Labour Code and the collective agreements of the professional sector to which their company belongs.

6.3.1.1.2 Lifelong Career Guidance

Everyone, regardless of their employment status, has the right to be informed, advised and supported in matters of career guidance as part of the right to education guaranteed by art. L. 6111-1 of the Education Code.370 As the first concrete expression of the right to career guidance, the State has created a free online service accessible to anyone, enabling them to obtain initial information and personalised advice on career guidance and to be directed towards more specialised structures. The right of all individuals to benefit free of charge throughout their working life from career development advice is intended to promote the development and security of their career path. This right is implemented free of charge at regional level by a dedicated operator as part of the regional public guidance service.371

6.3.1.1.3 Equal Access to Training

The law sets out the principle of equal treatment for men and women in vocational training; however, as a transitional measure, by regulation or agreement, measures may be taken for the sole benefit of women in order to establish equal opportunities. The principle of equal access also applies to the disabled and similar persons.

The 2012 NCC for personal services companies devotes a large part of its preamble to the principle of non-discrimination and equal treatment.

Aware of the prejudices and stereotypes in the personal services sector in particular, due in particular to the very high proportion of women in the sector, the parties also undertake to promote diversity in the branch via objective recruitment and professional assessment mechanisms. A periodic report on this subject will be drawn up at branch level on the basis of information collected from companies in the sector.

Apart from any legal obligation, the agreement provides that in companies with a works council, an “equal opportunities correspondent” should be appointed from among the staff to “monitor the training, awareness-raising and anti-prejudice and anti-stereotyping initiatives carried out by the employer”. Notwithstanding the employer’s legal obligations, an assessment report is produced annually by the “equal opportunities correspondent”.

This report summarises: the company’s recruitment procedures, the distribution of new recruits with indications of gender, age and any cases of disability. This report is sent to the works council as part of the single annual report. It will also be sent to trade union delegates as part of the mandatory annual negotiations. More generally, all supervisory staff in companies in the sector must be trained to manage human resources in a way that guarantees non-discrimination and promotes equality.

6.3.1.1.4 Access to Professional Certification (Training/Skills)

This idea of skills certification was recently enshrined by the legislator in the law of 5 September 2018. The aim is to validate the acquired knowledge required to carry out professional activities defined in a reference framework that describes the work situations and activities carried out and that is associated with a skills reference framework and a development reference framework. A national register of professional qualifications is drawn up and updated by a national institution called “France Compétences”. These qualifications are drawn up jointly by the professional sectors.

6.3.1.2 The Players

Four players are involved in continuing training: the State and the regions (6.3.1.2.1), the social partners (6.3.1.2.2), companies (6.3.1.2.3) and training providers.

6.3.1.2.1 The State and the Regions

The State is responsible for initial vocational training for young people, while the Region is responsible for regional policy on access to vocational training for young people and adults seeking employment or a new career direction. The State has a body created by the law of 5 September 2018 on the freedom to choose one’s professional future: “France compétences”, the keystone of the governance of the training and work-linked training system. The body’s many missions are listed in article L. 6123-5 of the French Labour Code. In particular, it is responsible for distributing pooled training and work-linked training funds among the various training funders. The State exercises general administrative and financial control over training initiatives carried out by employers when they are financed by the State, local authorities, etc., as well as over compliance with the obligations set out in article L. 6323-13 of the French Labour Code. Administrative and financial control of expenditure covers all financial, technical and teaching resources.

The regions are responsible for implementing the national training strategy. Each region has a regional employment, training and career guidance committee. In particular, they are responsible for organising information campaigns on careers and training, as well as on gender diversity and equality in the workplace.

6.3.1.2.2 The Social Partners

Continuing training is a matter for collective bargaining at national, cross-industry, branch and company level. The law leaves it to industry-level negotiations to define the priorities, objectives and resources of vocational training. The law requires collective bargaining to take place every 3 years. Unlike in the case of working hours, company agreements on vocational training cannot be derogatory. The reason for this is simple. If training is to fulfil one of its objectives, which is to support employees’ professional mobility, it must be designed according to the needs of the sector and not just those of the company. In addition to the obligation to negotiate on training, the French vocational training system is characterised by its joint management. In some branches, the partners have set up a forward-looking observatory for trades and qualifications.372

Collective branch agreements set training action priorities for 3-year periods. The 2012 NCC for personal services companies also targets two types of priority, including unqualified workers, young people and senior citizens, regardless of the size of the company. In particular, the aim is to make it easier for these employees to access continuing vocational training by developing literacy courses, combating illiteracy, and introducing and perfecting the French language.

The 2020 inter-branch agreement on the NCC for individual employer and home-based employment specifies that the sector’s professionalisation policy must enable it to cope with future demographic changes. It must respond to the growing needs of society in terms of support in the home, while adapting to technological and environmental changes that will progressively require the development and acquisition of new skills. It also aims to improve professional practices.

6.3.1.2.3 The Company

One of the company’s first obligations is to contribute each year to the financing of training and apprenticeship in various ways: by direct financing of training initiatives for their employees, by payment of the one-off contribution to vocational training, by payment of the contribution dedicated to financing the personal training account for holders of fixed-term employment contracts and, where applicable, by payment of additional contributions provided for by national professional agreement… Companies with fewer than 11 employees pay Urssaf 0.55% of the business income used to calculate social security contributions under article L. 242-1 of the Social Security Code. In companies with more than 11 employees, this contribution amounts to 11%. The sums are collected by France Compétences and are earmarked for the financing of work-linked training, career development advice, skills development for employees in companies with fewer than 50 employees, training for jobseekers and the personal training account. These funding obligations do not apply to the State, public establishments in the hospital civil service or local authorities.

It should be noted that the law of 5 September 2018 for the freedom to choose one’s professional future confirmed the singularity of the branch of individual employers and home-based employment by adapting the methods of organising and financing vocational training to the specific features of the branch. The decree of 28 December 2018 on contributions paid by certain categories of employers enshrines the mandating by individual employers of the Association Paritaire Nationale d’Information et d’Innovation pour la mise en œuvre des garanties sociales des salariés (APNI).373 An inter-branch agreement was signed on 27 November 2020 for the implementation of a professionalisation policy in the sector of individual employers and home-based employment. Two contributions are paid by individual employers: one is a legal exception provided for in article L. 6331-57 of the Labour Code (0.15%) and the other is a conventional contribution (0.40% calculated on the basis defined by article L. 6331-58 of the Labour Code) to enable broader funding. In addition, the inter-branch agreement of 2020 on the professionalisation of workers in the sector recalls the specific features of the professions in this sector of activity, which are as follows: the place where the activity is carried out is not the company, but the employer’s private home; the employment relationship between the employer and the employee has no profit-making or commercial purpose (the employer is a citizen assuming the responsibility of employer); the sector is characterised by a high proportion of employees in multi-employment situations. All these features are taken into account when implementing the right to training for workers in this sector.

6.3.2.1 The Employer’s Obligations

In addition to the obligation to contribute financially to training, the employer has a dual obligation: to adapt employees’ skills (6.3.2.1.1) and to negotiate collectively on vocational training (6.3.2.1.2).

6.3.2.1.1 An obligation to Adapt and Maintain Employees’ Skills as Their Workstations Change

This obligation, which was discovered in a court case374 in which the judge of the Cour de cassation invoked the employer’s general obligation to perform in good faith when assessing the merits of a decision to make employees redundant, was legalised by the law of 19 January 2000, reformed by the law of 4 May 2004. This obligation was enshrined in two complementary ways. On the one hand, redundancies for economic reasons can only take place when “all efforts at training and adaptation have been made”. Failing this, the dismissal is devoid of any real and serious cause.375 On the other hand, and more generally, the employment contract gives rise to an obligation on the part of the employer to adapt employees to their jobs and “to ensure that employees maintain their ability to hold down a job, particularly in the light of changes in jobs, technologies and organisations” and to “offer training to help develop skills, including digital skills, and to combat illiteracy”.376

Since the law of 5 September 2018, the non-compulsory skills development plan has replaced the training plan.377 This plan no longer distinguishes between training to adapt to the job and training to develop skills. A distinction remains between compulsory training and other training. Compulsory training includes all training that is a prerequisite for the performance of an activity or function in application of an international agreement or legal or regulatory provisions. Such training is systematically considered as actual working time and gives rise to continued remuneration. Other training courses are also considered to be actual working time and give rise to continued remuneration, subject to a collective agreement at branch or company level378 providing for all or part of the training to be carried out outside working hours, with the agreement “being able to provide for compensation to offset the cost of childcare” or, at the employer’s request and with the employee’s agreement, up to a limit of 30 hours per year and per employee,379 which the legislator has called co-investment.

The 2012 NCC for personal services companies devotes a specific chapter to forward-looking management of the employment and skills of seniors (people aged over 45). A three-yearly analysis of changes in the employment of seniors in the branch must be carried out, including: an age pyramid; details of the arduous nature of jobs; an indication of the percentage increase and promotion by age bracket and job; and an indication of the number of training days. Job retention measures will cover: job adjustments to take account of arduous working conditions; training in the use of new technologies; a progress report on the job held and in the profession. In addition, for employees working in the field, personal services jobs can generate certain physical burdens inherent to the activity. As a result, senior employees who so wish should be given priority for career development in the profession towards positions involving less physical work or even towards sedentary positions. Lastly, senior employees who have been in the profession for a long time and who wish to do so can provide support for newcomers to the profession through tutoring, which aims to share the experience they have acquired in the profession.

6.3.2.1.2 An Obligation to Negotiate

Although the law gives priority to industry-level negotiations on continuing vocational training, it does reserve some important powers for the company, including the obligation to negotiate a forward-looking jobs and skills management (GPEC) plan every 3 years in companies with more than 300 employees. These negotiations will also cover the broad outlines of vocational training within the company over the next 3 years, as well as the skills development plan. The aim is also to respond to the challenges of the ecological transition and the accompanying measures that must be associated with it in terms of training and top-up of the personal training account, validation of acquired experience and skills assessment. Each year, the Social and Economic Council is consulted on the multi-year training program, the prevention and training initiatives planned by the employer, the skills development plan and the direction of professional training.

Training is also part of the employer’s management powers, which must be exercised in consultation with staff representative bodies. Employees are informed when they are recruited that they are entitled to a professional interview every 2 years to discuss their career development prospects, particularly in terms of qualifications and employment. This interview will result in a written document, a copy of which will be given to the employee. Every 6 years, the professional interview provides an overview of the employee’s career path, which must be formalised in writing. This ensures that the employer has carried out the two-yearly interviews, and that the employee has attended at least one training course, validated the experience acquired or benefited from salary or career progression. In companies with at least 50 employees, if the employee has not benefited from the interviews and at least 2 of the 3 measures mentioned above, the employer must add 3,000 euros to the employee’s personal training account.

The 2010 NCC for the home help, support, care and services sets out in full the legal provisions on the professional interview.

The NCC for personal services companies of 2012 stipulates that all employees reaching the age of 45 must have a professional progress review (interview 2nd part of the career ) in the year following their 45th birthday. During this interview, the employer informs the employee of his or her rights to access a skills assessment or professional development program.

6.3.2.2 Employee Rights

An employee’s right to training can be broken down into 3 individual rights: the right to professional qualification; the right of initiative to training (the personal training account created by the law of 14 June 2013 to replace the individual right to training; it is open to anyone aged 16 or over) and the right to be informed, advised and supported in terms of career guidance. Employees can take various training initiatives: the personal training account (6.3.2.2.1), professional retraining (6.3.2.2.2), professionalisation contracts (6.3.2.2.3) and validation of acquired experience (6.3.2.2.4) and skills assessment (6.3.2.2.5).

6.3.2.2.1 The Personal Training Account

The “professional transition” CPF, created in 1971 and reformed by the law of 5 September 2018 under the name of individual training leave, is designed to help people change jobs or professions as part of a professional transition project.380 Employees must have been employed by the company for at least 24 months. The request must be made in writing to the employer, who is not entitled to refuse but may simply postpone it in certain situations. Transition employees are entitled to a minimum remuneration set by regulation. The duration of the professional transition project corresponds to the duration of the training course, and cannot be deducted from annual paid leave. This leave is treated as a period of actual work for the purposes of determining entitlement to annual leave and seniority in the company.

The Personal Training Account was created by the Law of 4 May 2004 to enable all employees to receive training throughout their working lives. It is an individual right of employees with open-ended employment contracts; this right took the form of a training credit of 20 h/year that could be accumulated up to 120 h per 6-year period. Replaced by the personal training account under the law of 14 June 2013 on securing employment, it was enshrined unchanged by the law of 2018, which reiterated it in the following terms:

In order to promote their access to lifelong vocational training, each person has, from the moment they enter the labour market until retirement, regardless of their status, a personal training account which contributes to the acquisition of a first level of qualification or to the development of their skills and qualifications by enabling them, on their own initiative, to benefit from training.381

This right may be exercised by any person, whether employed, seeking employment, self-employed, a member of a liberal or self-employed profession or a collaborating spouse.

The Personal Training Account, together with the Personal Account for the Prevention of Penal Injury and the Citizen Commitment Account, make up the Personal Activity Account (CPA). The aim of the CPA is to give its holders greater autonomy and freedom of action, and to make their career paths more secure by removing obstacles to mobility. It also contributes to the right to professional qualification.

Employees who have worked at least half of the legal or contractual working time over the whole year may contribute to the Personal Training Account up to a maximum of 500 euros per year worked, up to a maximum of 5,000 euros.382 The rights registered on the Personal Training Account are portable in the sense that they remain acquired in the event of a change in the holder’s professional situation or loss of employment.

The CPF is used solely on the employee’s initiative. However, if the training courses the employee wishes to follow are taken during working hours, the employer’s agreement is required. Employees are completely free to use their personal training account, provided that the training leads to professional qualifications registered in the national register. Also eligible are actions to validate acquired experience, skills assessments, etc..383

The 2010 NCC for the home help, support, care and services provides an exhaustive list of training courses eligible under the personal training account.384

The 2012 NCC for personal services companies incorporates the legal features of the personal training account.

The NCC for personal services companies of 2012 specifies that it encourages the pooling of resources in terms of the personal training account for multi-employer employees (of different statuses), particularly when they carry out an activity within the framework of the branch of employees of the private individual employer. To this end, if the employee is a multi-employer, and if he or she uses his or her acquired rights with his or her various employers, he or she will be given priority for implementing the individual right to training (DIF) as long as the action in question is recognised as a priority by the branch of private personal services companies.

The 2020 inter-branch agreement on individual employers and home-based employment creates a specific tool for the branch with a view to facilitating worker mobility and eliminating the possible perverse effects of multiple employers. This is an inter-branch professional passport enabling employees to: retrace their professional experience and the skills they have acquired in the private individual employer and home-working sector; list the professional certifications held by the branches that they have acquired and the training courses they have taken in the sector. In this respect, the professional passport is designed as a tool for enhancing skills, in particular with a view to validating acquired experience (VAE), employability and social recognition of the employee’s professionalism. It demonstrates employees’ commitment to continuous improvement in their professional practices. It is distinct from the orientation, training and skills passport. This passport, which is separate from the orientation, training and skills passport, is provided for in the French Labour Code and is accessible to anyone via the dematerialised information service dedicated to the personal training account. The inter-branch agreement also provides for the specific case of multi-employer workers. For example, in the case of shared childcare, as provided for in the national collective agreement for employees of private individual employers, the implementation of training is subject to the joint agreement of both employers. The employer who initiated the training project or the employer chosen by the employee to implement the training is the “sponsoring employer”. The sponsoring employer gives a mandate to the Association Paritaire Nationale Interbranche (APNI) to ensure the direct payment of remuneration and living expenses during the training course, with the APNI thus acting as a relay employer in accordance with article 14 of the inter-branch agreement.

6.3.2.2.2 Professional Retraining

The aim is to enable employees to change jobs or professions or to benefit from social or professional advancement through training or validation of experience. It applies to employees on permanent full-time or part-time contracts. It applies to employees whose qualifications are below a level determined by decree (corresponding to a bachelor’s degree). The list of professional qualifications eligible for retraining will be drawn up by collective branch agreements, and the remuneration of employees undergoing retraining may be paid by the skills operator under conditions laid down by decree. These actions may take place in whole or in part outside working hours, at the initiative of the employee or the employer and with the written agreement of the employee.385 If they take place during working hours, the employer will continue to pay the employee.

6.3.2.2.3 Professional Training Contracts

The purpose of this contract is to enable the employee to acquire one of the qualifications set out in article L. 6314-1 of the French Labour Code and to promote professional reintegration. It is intended to supplement the initial training of people aged between 16 and 25 and jobseekers aged 26 and over who have not completed a second cycle of secondary education and who do not hold a technological or vocational diploma, which may concern many care workers. According to article L. 6325-3 of the French Labour Code, the employer undertakes to provide the employee with training enabling him or her to acquire a vocational qualification and to provide him or her with a job related to this objective for the duration of the fixed-term employment contract or the vocational training course under the open-ended contract. The employee, for his part, undertakes to work for his employer and to follow the training provided for in the contract. The employee is supervised by a company tutor. The contract is concluded in writing for a fixed or indefinite period. The French Labour Code sets out the conditions relating to pay and working hours, as well as the duration and implementation of the professionalisation measures (from 6 to 12 months), which may be increased or extended by agreement or collective branch agreement.

This is the case with the NCC for the home help, support and care services of 2010, which has decided to extend the minimum duration of the professionalisation action for retraining or promotion through work-linked training to twenty-four months for all employees in the branch, and which specifies that holders of professionalisation contracts aged at least 26 will receive, for the duration of the fixed-term contract or the professionalisation action of the permanent contract, remuneration that cannot be less than either the minimum wage or 85% of the minimum conventional remuneration. In accordance with article L. 6324-3 of the French Labour Code, the social partners in the home help, support, care and services sector have decided to give priority to the eligibility of certain professional qualifications.386

As for the NCC for personal services companies of 2012, it specifies that the duration of the training courses may be between 25% and 40% of the duration of the contract (or of the professionalisation period for an open-ended contract), when the nature of the qualification in question so requires, or for groups whose list is broader than that recommended by the law, including in particular: people suffering from illiteracy, people who have not completed upper secondary education (lycée), jobseekers over the age of 45 and employees with at least 1 year’s seniority in the personal services sector. It sets the same rates of pay as the NCC for the home help, care, support and care services of 2010.

6.3.2.2.4 Validation of Acquired Experience

A public service for the validation of acquired experience has been created with the task of guiding and supporting any person requesting the validation of acquired experience who can prove that their activity is directly related to the content of the targeted certification. The validation of prior learning can only be carried out with the consent of the employee, and refusal to do so is neither a fault nor a reason for dismissal. The employee is entitled to leave if he or she has all or part of his or her prior learning validated during working hours and on his or her own initiative. The employer may not refuse an employee’s request for leave of absence, but may only ask for it to be postponed for service reasons. The hours devoted to the validation of prior learning for which authorisation has been granted by the employer constitute working time and entitle the employee to continued remuneration and social protection. The Regional Committee for Employment, Training and Vocational Guidance and France Compétences will monitor the validation of prior learning on a statistical basis.

The NCC for the home help, support and care services of 2010 recognises this possibility for all employees, regardless of their length of service with the company, for a period of 24 hours’ working time or 35 hours for employees who have not attained a level of training attested by a diploma classified at level V of the répertoire national des certifications professionnelles (national register of professional certifications) or a contractual certification.

The NCC for personal services companies of 2012 specifies, with regard to the validation of acquired skills, that employees aged 45 or over are particularly targeted and that, in any event, after 20 years of professional activity or as from their 45th birthday, any employee who so requests benefits, subject to a minimum of 1 year’s seniority in the company, from priority access to VAE.

6.3.2.2.5 Skills Assessment

The purpose of the skills assessment is to enable employees to analyse their professional and personal skills, as well as their aptitudes and motivations, in order to define a career plan and, where appropriate, a training plan.387

The NCC for home help, support and care services of 2010 recognises this right to skills assessment leave for any employee with at least 5 years’ seniority, consecutive or otherwise, as an employee, whatever the nature of successive employment contracts, including 12 months within the structure, in accordance with legal and regulatory provisions.

The 2012 NCC for personal services companies specifies that skills assessment is particularly aimed at employees aged 45 or over.

7.2.1.1 Social Insurance

Social insurance includes sickness and maternity insurance benefits (7.2.1.1.1), disability insurance benefits (7.2.1.1.2) and old age and death insurance benefits (7.2.1.1.3).

7.2.1.1.1 Sickness and Maternity Insurance Benefits (Specific Provisions for Pregnant Women)

In France, the social insurance scheme provides health insurance benefits subject to certain eligibility conditions,400 including membership of a social security scheme, residence in France and payment of social security contributions.

Health insurance benefits cover the partial reimbursement of medical expenses, the cost of hospitalisation in public or private establishments, including the fixed hospital charge, dental expenses (treatment, prostheses, orthodontics) and optical expenses (glasses, contact lenses), full cover for maternity expenses, including pre-natal consultations and post-natal care, specific cover for patients with long-term conditions, cover for workers who have suffered accidents at work or occupational illnesses with daily allowances and care abroad, both within the European Union and in certain countries outside the European Union. Details of benefits vary according to the situation of each insured person and changes in legislation, so it is advisable to consult your health insurance fund (CPAM, MSA, etc.) for specific information and applicable reimbursement rates.

Careers are covered by the same maternity insurance scheme as all employees. Maternity leave lasts for 16 weeks for normal pregnancies and gives rise to the payment of daily allowances to compensate for the loss of income401 (paternity leave and childcare leave). Medical care related to pregnancy and childbirth is covered at 100%, including prenatal consultations, ultrasounds and childbirth. Parental leave is provided for after maternity leave. The employment protection rights of pregnant careers have been strengthened, with the right to return to work after maternity leave. In the event of exposure to occupational risks, specific measures may be put in place (e.g. night work, shorter working hours, carrying heavy loads), or even adjustments to working hours (due to recognition of occupational risks; rest; night work; absences; care cover; maternity leave; daily allowances; parental leave; job protection.402

7.2.1.1.2 Disability Insurance Benefits

In France, disability insurance benefits are designed to provide financial support for individuals who become disabled, i.e. who are totally or partially unable to work due to illness or accident. These benefits are mainly managed by the Social Security system. In addition, supplementary health insurance provides a guarantee of income in the event of temporary incapacity for work, disability or death.403

When a person is recognised as disabled by the Social Security system, they may be entitled to an invalidity pension. This pension is calculated on the basis of the person’s degree of invalidity, previous income and ability to work. It is intended to compensate for the loss of income caused by the inability to work.

Adults of working age may also be entitled to the Allowance for Disabled Adults (Allocation aux Adultes Handicapés-AAH), a benefit designed to guarantee a minimum income for people with severe disabilities who are unable to work.

The criteria for entitlement and the amounts of these benefits vary according to the situation of each worker, in particular their resources and the severity of their disability.

7.2.1.1.3 Old-Age and Death Insurance Benefits404

Like all employees, care workers are entitled to a retirement allowance, but their agreement is required if they have not reached statutory retirement age. If they agree, the employment contract ends with the payment of retirement pay, equivalent to redundancy pay. Some sectors, such as the private hospital sector,405 provide additional cover under collective bargaining agreements. In the event of death or serious disability, a lump sum is paid to the beneficiaries or to the insured person himself. Terms and conditions vary according to the employee’s family situation and the cause of death, and funding varies between employers and employees, ranging from full coverage by the employer to an equal contribution for disability and death, subject to collective agreements.406 Contribution rates vary according to occupational category, with a legal limit of 50% employer participation.

For civil servants in France, the retirement scheme and associated benefits differ from those in the private sector. The legal retirement age varies depending on the status of the employee. In general, civil servants have the option of retiring at a minimum age with a required number of years’ service. Retirement pay for civil servants is not necessarily equivalent to redundancy pay in the private sector. It depends on the employee’s status, grade, career (indexed salary, length of service) and the rules specific to each civil service (State, local authority, hospital). Pensions for civil servants are managed by the State Pensions Department and the Caisse Nationale de Retraite des Agents des Collectivités Locales (CNRACL) for local authority and hospital employees.

7.2.1.2 Coverage for Accidents at Work and Occupational Illnesses

7.2.1.2.1 Definition of Occupational Risks

Insurance against accidents at work and occupational diseases covers employees,407 workers treated as employees408 and certain categories exposed to occupational risks,409 while public employees are covered by a dedicated national fund.410 An accident at work is defined as a sudden and brutal action resulting in psychological bodily injury occurring during work or while commuting to and from work, with similar benefits for commuting accidents,411 but without the possibility of invoking the employer’s inexcusable fault412 or benefiting from protection against dismissal in the event of an accident.413 Occupational illnesses are those listed in the tables,414 but may also be recognised by a personal assessment outside these tables, in accordance with law no. 93-121 of 27 January 1993.

7.2.1.2.2 The Legal System and Social Cover for Occupational Risks

The occupational injury and disease scheme provides lump-sum compensation to victims or their dependants in the event of an occupational injury or disease, with benefits in kind to cover health expenses and cash benefits to compensate for loss of earnings. Daily allowances represent 60% of gross salary for the first 28 days of absence from work,415 rising to 80% thereafter. A disability pension is provided for permanently disabled victims, based on the degree of disability and previous salary, financed by employer contributions and, in some cases, conditional on the worker’s seniority under the applicable collective agreements.416 Supplementary benefits may not exceed the net salary that the employee would have received had he or she continued to work.417

The fault of an employee who is the victim of an accident at work or occupational disease, or that of the employer, can have an impact on the right to compensation. In the event of intentional misconduct on the part of the employee,418 he or she is entitled to ordinary health insurance benefits, while inexcusable misconduct may lead to a reduction in the pension, and serious misconduct on the part of the employer may give rise to additional compensation for the victim.419

7.2.1.3 Unemployment Insurance Benefit

Unemployment insurance is designed to compensate for loss of income due to involuntary loss of employment or activity. France ratified the ILO Unemployment Convention, 1919 (no. 2) on 25 August 1925. The unemployment insurance scheme is based on specific contributions and follows an insurance principle based on income prior to job loss. Eligibility criteria are strict, but certain specific situations, such as termination of the contract on the death of the individual employer, may make it easier to qualify for compensation. The scheme is governed jointly by representatives of employees and employers. What sets it apart for the self-employed is that it is more assistance-based, with conditions of access linked to financial situation and events such as compulsory liquidation.