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It is only mandatory to sign an employment contract with an employee in the case of a fixed-term contract or a part-time contract. The signature of a contract is not compulsory for the hiring of an employee on a permanent contract. However, beware of the possible re-qualification of contracts and the risk of the absence of written documents between the parties.
Indeed, cases of disagreement on working conditions are common. The absence of a legal obligation does not preclude the legal security necessary for both parties, the employer and the employee, in relationships that can be a source of litigation.
The employment contract is concluded between two people, an employee and an employer.
An employment contract is said to be "the agreement by which a person, the employee, undertakes to place their activity at the disposal of another person or legal entity, the employer, under whose subordination they place themselves, in return for remuneration."
In order for there to be an employment contract, these three essential elements must be present: a work performance, a remuneration and a subordination link.
In principle, the employment contract is for an indefinite period of time. However, there are also many other forms of contract such as fixed-term employment contracts.
The principle is therefore that there is no obligation to sign an employment contract for a full-time relationship of indeterminate duration. In fact, when the employment relationship is of indefinite duration but part-time, the signature of a contract becomes mandatory again.
The acceptance of a full-time work assignment for an indefinite period of time can then be done orally. Legally, this is an authorized practice and, in France for example, is provided for in article L1221-1 of the French Labor Code: "the employment contract is subject to the rules of common law. It can be established according to the forms that the contracting parties decide to adopt."
In reality, the absence of a contract is rare, and fortunately, the signing of a contract protects both parties, employer and employee. However, if the employer wishes to impose specific clauses on his employee, such as non-competition clauses, mobility clauses or confidentiality clauses, the signature of an employment contract will be essential.
Another case in which the signature of the contract is compulsory, even in the case of a permanent contract: when the employer wants to impose a trial period to validate the final hiring. A full-time permanent contract with a trial period must be the subject of a specific clause in the employment contract.
Warning: if an employment contract remains oral for more than two days and is not followed by a signature, the contract concluded is presumed to be a permanent contract. Thus, a delay in signing the employment contract is required to avoid the re-qualification of a fixed-term contract as a permanent contract.
Good to know: for the sake of legal protection in companies, several collective agreements or branch collective agreements require the drafting of an employment contract, even for a permanent contract. As a reminder, if the provisions of the collective agreements and branch collective agreements are more favorable than the law, they take precedence and are binding on the parties concerned, members of the management and employees.
The absence of a written contract can have serious consequences: the employee can work as they wish and resign as they wishes, without notice. It will be difficult to put any constraint on them. On the other hand, the absence of a contract makes a contract particularly fragile, as dismissal can occur at any time and the employee's declaration to the competent authorities is not assured.
The signing of the employment contract provides an essential legal framework for the employer and especially for the employee:
Is it possible to sign an employment contract by email? If it is a permanent contract for which an employment contract is not mandatory, the exchange of emails can indeed be a sufficient framework for the relationship. However, the same risks as those described above apply. The e-mails must be very precise in order to secure the relationship as much as possible.
Furthermore, there are no restrictions concerning the use of electronic signatures. It is completely authorized to sign work contracts.
In the case of a fixed-term employment contract, the signing of a contract is mandatory. There is also a time limit for signing a fixed-term employment contract, which is set at two days. In the absence of a written contract, the employer can be condemned to pay the employee a fine of 3,750 € or 7,500 € in case of recidivism. The deadline for signing a part-time permanent employment contract is the same.
To summarize, the absence of a signed employment contract is possible in the case of a full-time fixed-term contract without specific clauses, but is not recommended in a field where disputes are legion.
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