Employment law
The temporary replacement contract
A contract that exists through one person: the one it replaces. Without a name, there is no replacement contract.
A temporary replacement contract is concluded to replace a permanent employee whose contract is legally suspended: maternity, leave, illness, lay-off. It fills a seat; it does not create a post.
This dependence on an identified person is both its strength and its fragility. Its strength, because the ground proves itself: there is an absent employee. Its fragility, because a contract naming no one loses its term and becomes an open-ended contract.
1. When can it be used?
Its use presupposes a legal suspension of the replaced employee's contract. This is not a vague notion: the Code lists the grounds. The most frequent:
- maternity leave;
- paid leave;
- illness or accident, occupational or not;
- disciplinary lay-off;
- widowhood or pilgrimage leave;
- military obligations or civic service.
A permanent departure (resignation, dismissal, end of contract) is not a suspension. If the post is vacant because its holder has left, there is no one to replace: using a replacement contract is irregular, and another contract must be considered. See Grounds for legal suspension. Labour Code, Article L.34 (French).
2. What the contract must state
This is the heart of the regime. The contract must make clear who is replaced, why, and until when:
| Particular | Why it is needed |
|---|---|
| The name of the replaced employee | This is what ties the contract to a real absence |
| Their position and qualification | They define the scope of the replacement |
| The ground for the suspension | It justifies the arrangement and indicates its likely length |
| The length of the suspension, if known | It sets the term, or failing that the minimum duration |
The first line is not negotiable. A contract drafted "to replace an absent employee" does not precisely define its ground: it loses its term and becomes an open-ended contract. Decree No. 2022-0125/PT-RM, revised Article D.20-1 (French).
3. How long?
A replacement contract is subject to no minimum duration: it follows the length of the absence it covers.
It ends when the employee whose contract was suspended returns. Two ways to frame it, depending on what is known about the absence:
| Precise term | Imprecise term | |
|---|---|---|
| When to use it | The absence has a known length: maternity leave, paid leave | The absence has an uncertain end: prolonged sick leave |
| What ends the contract | The date written into the contract | The actual return of the replaced employee |
| What must be written | The end date | A minimum duration, without which the contract is incomplete |
An imprecise term is often the more honest choice, but it does not remove the need to state a minimum duration, during which the contract cannot end even if the post-holder returns sooner.
4. Sectors with permanent recourse
Some sectors are permitted to use fixed-term contracts on an ongoing basis, given the temporary or seasonal nature of their activity:
- education;
- surveys and polling;
- forestry;
- hotels and catering;
- building and public works;
- leisure and holiday centres;
- meat storage and warehousing.
This list corresponds to the sectors where it is customary not to use open-ended contracts. Note, however, that belonging to one of these sectors does not remove the need to draft the contract properly or to define its purpose precisely.
5. The replacement employee's rights
A replacement employee is an employee in full: the same working conditions, the same health and safety protection, the same medical monitoring, the same access to protective equipment.
One important difference, at the end of the contract: an employee engaged to provide the temporary replacement of a worker under legal suspension is among the cases excluded from the 2.5% end-of-contract payment. Still due, as in any contract, are the final salary balance, accrued bonuses, compensation for untaken leave and the certificate of employment. Labour Code, Articles L.24 and L.61 (French).
6. Three mistakes to avoid
- Not naming the person replaced. This is the leading cause of reclassification.
- Covering several absences with one contract. One contract corresponds to one replaced person; as many contracts as replaced employees are needed, even if the replacement is the same person.
- Keeping the replacement in post after the holder returns. Continuing the relationship beyond the term produces, by operation of law, an open-ended contract.
Key takeaways
| The rule | What it implies |
|---|---|
| The contract covers a legal suspension | A permanent departure is not a suspension |
| The contract names the person replaced | Without a name, it becomes an open-ended contract |
| It ends on the holder's return | Or on the agreed date where a precise term applies |
| Without a precise term, a minimum duration is required | It protects the replacement from an early return |
| One replacement, one contract | As many contracts as replaced employees |
| The 2.5% payment is not due | But salary, leave and the certificate remain due |