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Whilst this legal column is usually inspired by a court ruling that has caught our attention, on this occasion it stems from a practical question raised by one of our members. This question led us to consult the relevant case law, which confirmed the interpretation we had already adopted.

Beyond the specific judgement in question, it was therefore the question itself that we felt was worth sharing, given that it is likely to arise in the day-to-day operations of many businesses.

The question posed by the member was as follows: “Is it possible to amend a substantive clause of a fixed-term contract?” Behind this question, which at first glance appears straightforward, lay a broader issue relating to the interplay between a substantive amendment to an employment contract and the rules governing the termination of a fixed-term contract.

As a reminder, after the probationary period, a fixed-term contract cannot be terminated with notice. At this stage, the only options remaining are termination with immediate effect on serious grounds and termination by mutual agreement. However, when carried out with notice, a substantial amendment to the employment contract follows the same procedure¹ as dismissal with notice, with the employee who refuses it having the option to leave the company on the date the amendment takes effect and to seek to have their resignation reclassified as unfair dismissal².

The member’s question could therefore be reformulated as follows: does the reference made in Article L. 121-7 of the Labour Code to provisions relating to the termination of a permanent contract mean that a substantial amendment is only possible in the context of a permanent contract? Or is the purpose of this reference solely to determine the procedure applicable to any substantial amendment to the employment contract, with or without serious cause? It is this second interpretation that must be adopted.

In order to reinforce this analysis with case-law support, our research led us to a judgment of the Court of Appeal dated 11 March 2010 (case no. 34325). In that case, an employee on a fixed-term contract had been notified of an amendment to her employment contract in accordance with the procedure laid down in Article L. 121-7 of the Labour Code. After informing her employer that she refused this amendment and that she would cease working on the date it came into effect, she did indeed leave her post and subsequently brought legal proceedings.

Having been unsuccessful at first instance, the employee lodged an appeal. The Court of Appeal rejected the argument that Article L. 121-7 does not apply to fixed-term contracts, stating: ‘The appellant criticises the trial judges for having relied on Article 121-7 of the Labour Code on the grounds that this article does not apply to fixed-term employment contracts. This ground of appeal is unfounded, given that these provisions are set out under the chapter entitled ‘Employment contracts in general’, and therefore apply to both fixed-term and permanent employment contracts.”

The Court of Appeal thus confirms that Article L. 121-7 of the Labour Code is not limited solely to permanent contracts. A fixed-term contract remains a fully-fledged employment contract. Whilst it is subject to specific rules relating, in particular, to its duration and formal requirements, these specific features do not preclude the application of the procedure for substantial amendment.

The lesson here is ultimately as simple as it is useful: whilst the duration of a fixed-term contract is fixed, its content is not set in stone. The employer retains the right to make substantial amendments to certain clauses, provided that the legal procedure is followed.