In a detailed 22-page ruling dated June 15th, 2026, the Versailles Court of Appeal declared the Senior Manager's fixed-day work agreement invalid. To this end, the court asserts that “while the parties agree that Deloitte Conseil conducted an annual ‘Work-Life Balance’ interview with the employee between 2018 and 2021, the employer, who bears the burden of proof regarding compliance with its obligations, has failed to submit this evidence. It has thus not provided proof that these interviews allowed the employee to discuss their workload, work organization, the balance between their professional and personal life, and their compensation, as required by Article L. 3121-65, 3°, of the French Labor Code.”
The court orders Deloitte Conseil to pay €76,403 in overtime pay.
The employee submitted the following evidence:
- a table listing, for each day of the period from January 28, 2019, to September 19, 2021, the start and end times of work and including one hour of break time each day;
- 2,699 pages of work emails sent or received during this period.
The court ordered Deloitte to pay €5,000 in damages for psychological harassment. The grounds for the harassment were very detailed (5 pages).
Finally, in light of the breaches, the Court of Appeal ordered the judicial termination of the employment contract with the effects of a wrongful dismissal.
Deloitte Consulting appealed to the Court of Cassation.
1) FACTS AND PROCEDURE
Deloitte Consulting is a simplified joint-stock company with a single shareholder, registered with the Nanterre Trade and Companies Register.
Its business activities include business and other management consulting. It employs more than 11 employees, or more than 250 according to the employer.
By an open-ended employment contract dated April 15, 2008, Mr. X was hired by Deloitte Consulting as a junior consultant, coefficient 100, level 1.2, executive status, full-time, effective September 8, 2008, with an average gross monthly salary of €2,876.92, also effective September 8, 2008.
Mr. X subsequently held the positions of consultant, senior consultant, and manager.
At the end of his employment, Mr. X held the position of Senior Manager, coefficient 210, level 3.2, executive status, and received an average gross salary of €7,775.37 per month.
The contractual relationship was governed by the provisions of the National Collective Bargaining Agreement for Technical Design Offices, Consulting Engineering Firms, and Consulting Companies of December 15, 1987 (the Syntec agreement).
On June 18, 2019, Mr. X went on sick leave until June 21, 2019.
On September 20, 2021, Mr. X went on sick leave.
By registered letter with acknowledgment of receipt dated October 29, 2021, Mr. X reported to Deloitte Consulting the deterioration of his working conditions, which he considered to constitute acts of psychological harassment. By an initial application received by the registry on January 28, 2022, Mr. X filed a claim with the Nanterre Industrial Tribunal seeking a judicial termination of his employment contract due to the employer's fault.
By order of the First President of the Versailles Court of Appeal dated April 12, 2022, the Nanterre Industrial Tribunal was divested of jurisdiction in favor of the Mantes-la-Jolie Industrial Tribunal.
By an opinion issued following the return-to-work medical examination of February 21, 2022, Mr. X was declared unfit for his position by the occupational health service, stating: "The employee's state of health precludes any reassignment to another position."
By registered letter with acknowledgment of receipt dated March 1, 2022, Deloitte Consulting summoned Mr. X to a preliminary meeting regarding possible dismissal. The interview was scheduled for March 11, 2022. Mr. X did not attend the interview.
By registered letter with acknowledgment of receipt and a regular letter dated March 16, 2022, Deloitte Consulting notified Mr. X of his dismissal for permanent incapacity with no possibility of reassignment, in the following terms: “Sir, This letter follows up on our letter dated March 1, 2022, in which we summoned you to a preliminary interview scheduled for March 11, 2022; an interview which you did not attend.
As a reminder, you have been with our company since September 8, 2008, and hold the position of Senior Manager.
During your return-to-work medical examination, and by opinion dated February 21, 2022, the Occupational Physician notified us of your incapacity to perform your duties in the following terms: “The employee’s state of health precludes any reassignment to another position.” In light of the explicit statement above, your state of health precludes any search for reassignment and therefore compels us to notify you, by this letter, of your dismissal for incapacity and impossibility of reassignment.
Your employment contract terminates on the date of dispatch of this letter, namely March 16, 2022. Given the impossibility of working your notice period, the corresponding compensation is therefore not due to you (...).
By judgment rendered on September 25, 2023, to which the court refers for a statement of the parties' initial claims and the prior proceedings, the Mantes-la-Jolie Industrial Tribunal:
- Held that Mr. X's dismissal for incapacity was indeed based on a genuine and serious cause;
- Dismissed all of Mr. X's claims;
- Mr. X was ordered to pay Deloitte Conseil the sum of 500 euros (five hundred euros) pursuant to Article 700 of the Code of Civil Procedure;
- Mr. X was ordered to pay the costs.
By notice of appeal received by the registry on October 23, 2023, Mr. X appealed this judgment.
2) REASONS
By judgment of June 15, 2026, the Versailles Court of Appeal, ruling in a contested judgment, at last instance, and delivered by filing with the registry:
SETS ASIDE the decision of the Mantes-la-Jolie Industrial Tribunal except insofar as it dismissed Mr. X's claims for undeclared work and for breach of its safety obligation by Deloitte Conseil. Ruling anew and adding thereto,
ORDERS Deloitte Conseil to pay Mr. X the following sums:
- €76,403.28 for overtime worked from January 28, 2019, to September 19, 2021, and €7,640.32 for related paid leave,
- €32,466.84 as compensation for failure to provide compensatory rest, including related paid leave,
- €1,000 in damages for failure to comply with weekly working hours,
- €1,000 in damages for failure to comply with daily working hours,
- €1,000 in damages for failure to comply with daily rest periods,
ORDERS Mr. X to reimburse Deloitte Conseil the sum of €6,752.41 for days of reduced working time from January 2019 to September 2021,
REJECTS Deloitte Conseil's claim for reimbursement of the salary increase under the annual work schedule agreement, FINDS that Mr. X was a victim of workplace harassment,
ORDERS Deloitte Conseil to pay Mr. X the following sums:
- €5,000 in damages for workplace harassment,
- €4,231.92 as back pay for contractual bonuses for 2019,
- 5 €782 as a back payment of contractual bonus for 2020,
- €9,250 as a back payment of contractual bonus for 2021,
ORDERS the judicial termination of the employment contract at the fault of Deloitte Conseil as of January 28, 2022,
DECLARES that this judicial termination has the effects of a void dismissal,
ORDERS Deloitte Conseil to pay Mr. X the following sums:
- €77,750 as compensation for void dismissal,
- €23,326.11 as compensation in lieu of notice and €2,332.61 for accrued vacation pay,
ORDERS the employer to reimburse the relevant organizations for all or part of the unemployment benefits paid to Mr. X, from the date of termination of the employment contract to the date of this decision, up to a limit of six months of benefits. Unemployment,
ORDERS Deloitte Conseil to provide Mr. X with a Pôle emploi certificate, a final settlement statement, and payslips conforming to this judgment,
RULES that there is no need to impose a penalty payment,
ORDERS that wage-related claims shall bear interest at the statutory rate from the date of receipt by Deloitte Conseil of the summons to appear before the conciliation board, and compensation-related claims from the date of notification of the judgment awarding them,
ORDERS the capitalization of interest due for at least one full year,
ORDERS Deloitte Conseil to pay Mr. X the sum of €3,000 pursuant to Article 700 of the Code of Civil Procedure,
ORDERS Deloitte Conseil to pay the costs of the proceedings at first instance and on appeal.
2.1) On the unenforceability of the fixed-day work agreement
Mr. X argues that the fixed-day work agreement stipulated in his employment contract is unenforceable against him because his contract does not include certain mandatory clauses for the application of the fixed-day work agreement (nature of the assignments justifying the use of this arrangement, number of days worked per year, number of meetings), because Deloitte Conseil never complied with the contractual provisions of the amendment of April 1, 2014, before the proposed amendment of November 8, 2021, and because he did not receive any effective monitoring of his workload.
He adds that, in practice, at least in recent years, he had to justify his work schedule to his superiors.
Deloitte Consulting maintains that it complied with the applicable collective bargaining agreement provisions in effect at the time the disputed employment contract was concluded, which did not require any of the clauses cited by the employee. These clauses stem from the amendment of April 1, 2014, to the agreement of June 22, 1999, concerning working hours at Syntec.
The company notes that the employee refused to sign the amendment regarding working hours that it proposed in November 2021.
It adds that the employee was aware of his number of working days, as his payslips indicated an annual work schedule of 218 days.
The company notes that the employee never raised any concerns with his superiors regarding his annual work schedule agreement and disputes that he was required to justify his work schedule to them. It maintains that it held work-life balance discussions with the employee. Article 12 of Law No. 2016-1088 of August 8, 2016, stipulates that the execution of an individual fixed-day work agreement concluded on the basis of a collective bargaining agreement or a company or establishment agreement, which, on the date of publication of the law (August 9, 2016), does not comply with points 1° to 3° of Section II of Article L. 3121-64 of the French Labor Code, may be continued, provided that the employer complies with Article L. 3121-65 of the same code.
It may therefore be continued, according to the terms of this latter provision, provided that the employer:
- establishes a monitoring document showing the number and date of the days or half-days worked; Under the employer's responsibility, this document can be completed by the employee.
- The employer ensures that the employee's workload is compatible with respecting daily and weekly rest periods.
- The employer organizes an annual meeting with the employee to discuss their workload, which must be reasonable, the organization of their work, the balance between their professional activity and personal life, and their remuneration.
The annual work agreement based on days worked is unenforceable against the employee if the employer fails to meet these obligations.
In this case, Article 4 of Mr. X's employment contract, signed by the parties on April 15, 2008, stipulates that the employment relationship will be governed by an annual work agreement based on days worked, in accordance with the applicable Syntec collective bargaining agreement, and that, in return, the employee is entitled to 10 working days of rest per year, prorated to their working time. She specifies that "the employee has complete freedom in organizing their working time within this package, subject to respecting the legal rules relating to daily and weekly rest provided for in articles 8.3.2 and 8.3.3 of the collective agreement (...). The employee is not subject to maximum daily and weekly working hours."
Article 2 of the amendment to his employment contract, signed by the parties on October 26, 2017, stipulates that his fixed-day work agreement is for 218 days, including the solidarity day.
At the time the individual agreement was concluded, the provisions of the collective agreement were not such as to guarantee that the scope and workload would remain reasonable and ensure a proper distribution of the employee's work over time, and therefore, to ensure the protection of the employee's safety and health, as ruled by the Court of Cassation in a judgment of April 24, 2013 (Soc., April 24, 2013, appeal no. 11-28.398, Bull. 2013, V, no. 117).
The court notes that it was only on November 8, 2021, that Deloitte Conseil offered him an amendment to his employment contract to bring it into compliance with legal and contractual provisions regarding working hours, in particular with the collective agreement adopted within the Economic and Social Unit (UES) on March 26, 2021. The employee did not sign this amendment. However, his bad faith is not established given that he had been on sick leave since September 20, 2021, and never returned to work.
It was therefore incumbent upon the employer to comply with the provisions of Article L. 3121-65 of the French Labor Code, as mentioned above, in order to continue the execution of the fixed-day work agreement stipulated in Mr. X's contract, which was concluded before the publication of Law No. 2016-1088 of August 8, 2016.
However, while the parties agree that Deloitte Conseil organized an annual meeting with the employee between 2018 and 2021 entitled "Work-Life Balance," the employer, who bears the burden of proving compliance with its obligations, has not submitted this information to the proceedings. Thus, it has not provided evidence that these meetings allowed the employee to discuss his workload, the organization of his work, the balance between his professional and personal life, and his compensation, as required by Article L. 3121-65, paragraph 3, of the French Labor Code. Without needing to address the other arguments of the parties, the fixed-day work agreement stipulated in the disputed employment contract is therefore not enforceable against Mr. X, who was thus subject to the statutory working hours of 35 hours per week, in accordance with the provisions of Article L. 3121-27 of the French Labor Code.
2.2) Regarding overtime
Mr. X maintains that he worked 1,345.21 overtime hours between January 28, 2019, and September 19, 2021, and therefore requests that Deloitte Conseil be ordered to pay him the sum of €76,403.28, plus the corresponding paid leave.
Pursuant to Article L. 3171-2, paragraph 1, of the French Labor Code, when all employees working in a department or workshop do not follow the same collective schedule, the employer must prepare the necessary documents for calculating working hours, accrued compensatory rest periods, and their actual use, for each employee concerned.
It follows from the provisions of Articles L. 3171-2, paragraph 1, L. 3171-3, and L. 3171-4 of the French Labor Code that, in the event of a dispute concerning the existence or number of hours worked, it is the employee's responsibility to provide, in support of their claim, sufficiently precise evidence regarding the unpaid hours they claim to have worked, in order to allow the employer, who is responsible for monitoring working hours, to respond effectively by producing their own evidence.
Pursuant to Article L. 3121-28 of the French Labor Code, as amended by Law No. 2016-1088 of August 8, 2016, any hour worked beyond the statutory weekly working hours or the equivalent hours constitutes overtime and entitles the employee to increased pay or, where applicable, compensatory time off.
Article L. 3121-36 of the French Labor Code stipulates that, in the absence of an agreement, overtime worked beyond the statutory weekly working hours set forth in Article L. 3121-27 or the equivalent hours entitles the employee to a 25% pay increase for each of the first eight overtime hours. Subsequent hours entitle the employee to a 50% pay increase.
In support of his claim, Mr. X produced:
- a table listing, for each day of the period from January 28, 2019, to September 19, 2021, the start and end times of work and including one hour of break time each day,
- 2,699 pages of work emails sent or received during this period.
This evidence is sufficiently precise to allow the employer to provide a useful response regarding the overtime the employee claims to have worked beyond the legal working time of 35 hours that applied to the employment relationship.
Deloitte Consulting maintains that nothing demonstrates that the tasks performed through the emails were carried out overtime.
Furthermore, none of his performance reviews mention any difficulty in delivering the agreed-upon work within the expected deadlines; on the contrary, he was recommended for promotion to the position of Director in March 2020.
During his part-time assignment with Company B from January 4, 2021, to April 30, 2021, he had to completely replace a resigning colleague, according to the end-of-assignment evaluation he provided. However, the evidence submitted does not indicate that his other assigned workload was correspondingly reduced.
The employer, who fails to specify which tasks performed by Mr. X did not correspond to work expressly requested of him, nor which were unnecessary given the assigned mission, provides no evidence to support its allegations on this point. Furthermore, the court notes that the timesheets completed by the employee to declare to the employer his billable and non-billable working hours are clearly far less precise than the accounting he submitted to the court. Indeed, apart from a few days when he declared 3 or 4 hours of work, Mr. X declared every day during the period in question that he worked exactly 7 or 8 hours, depending on the day, which clearly does not correspond to the actual work he performed, as evidenced by the emails he produced. These timesheets are therefore not relevant evidence to contradict the precise hourly accounting of his working hours submitted by the employee.
It is thus established that Mr. X worked all the overtime hours for which he is claiming payment, namely 693.19 hours at a 25% premium and 652.02 hours at a 50% premium.
In light of these factors, and in the absence of any time-tracking measures by the employer, Mr. X was entitled to receive a total of €76,403.28 for overtime worked between January 28, 2019, and September 19, 2021.
Article 4 of Mr. X's employment contract stipulates that his remuneration was a fixed amount, independent of the number of hours worked, which compensated him for the performance of his assigned duties up to the number of days worked.
No mention is made of an increase in the applicable minimum wage due to the employee's subjection to a fixed-day work agreement.
This agreement was, however, offset by an allocation of 10 working days of leave per year, prorated to his time worked.
Thus, contrary to the claims of Deloitte Conseil, the employee's compensation did not include any amount for overtime he might have to work due to his being subject to the annual work schedule agreement.
Since the parties did not agree to include overtime pay in the contractually agreed compensation, there will be no reason to deduct the sum of €66,814 from the amount owed to the employee for the overtime he worked.
Deloitte Conseil will therefore be ordered to pay Mr. X the sum of €76,403.28 for overtime and €7,640.32 for accrued vacation pay. The judgment under appeal will be reversed on these points.
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Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
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