Where the employer fails to comply with the statutory and collective-agreement provisions that protect the employee's health, safety and right to rest, the fixed-days annual working-time agreement (convention de forfait en jours, or forfait-jours) is deprived of effect and the employee can claim payment for overtime (Cass. soc., 11 March 2025, n° 24-10.452). The court verifies whether such overtime exists and how many hours were worked.
An employee on an annual fixed-days arrangement is not subject to the statutory working week of 35 hours, nor to the maximum daily and weekly working hours (article L3121-62). As long as the agreement remains in effect, there is therefore no overtime to count: the agreement sets the number of days covered by the forfait, within the limit of 218 days laid down by article L3121-64, and the collective agreement may set the maximum number of days worked where the employee gives up part of their rest days.
A back-pay file therefore starts with one question: did the employer comply with the provisions that protect the employee's safety, health and rest? If the agreement is deprived of effect, the employee can claim payment for overtime, that is, hours worked beyond the statutory 35-hour week (articles L3121-27 and L3121-28).
The forfait-jours rests on several layers of rules. The deprivation of effect stated in the 2025 judgment targets non-compliance with the rules that protect the employee's safety, health and rest; in that case, the breaches identified concerned the monitoring of workload. The other layers are read with their own provisions:
| Layer | What the Labour Code requires | Article |
|---|---|---|
| The employee | A manager (cadre) with autonomy in organising their working time, whose duties do not lead them to follow the collective working hours, or an employee whose working time cannot be determined in advance and who has genuine autonomy | L3121-58 |
| The individual agreement | The employee's consent and an individual forfait agreement drawn up in writing | L3121-55 |
| The collective agreement | A company-level or establishment-level agreement or, failing that, an industry-wide agreement, which sets in particular the arrangements for assessing and regularly monitoring workload and for periodic discussions with the employee | L3121-63, L3121-64 |
| Implementation | The employer regularly ensures that the workload is reasonable and allows a proper distribution of work over time | L3121-60 |
Where the collective agreement does not provide for arrangements to monitor workload and for periodic communication, an agreement can still be validly concluded if the employer complies with three fallback obligations (article L3121-65):
Failing any provisions on the right to disconnect, the employer itself defines the arrangements and communicates them to the employees concerned; in companies with at least fifty employees, these arrangements comply with the charter provided for in point 7 of article L2242-17 (same article, II).
In practice, the documents to request are the applicable collective agreement, the written individual agreement, the records monitoring the days worked and the material relating to the annual workload interviews.
In its judgment of 11 March 2025, published in the Bulletin, the employment chamber held that where the employer fails to comply with the statutory provisions and the stipulations of the collective agreement intended to protect the employee's safety and health and their right to rest, the forfait-jours agreement is deprived of effect, so that the employee can claim payment for overtime, whose existence and number the court must verify.
The same judgment draws a consequence for damages: this breach does not, on its own, give rise to a right to compensation, and it is for the employee to demonstrate the separate loss that would result from it. In the case decided, the employee, who neither proved nor even alleged having worked overtime, suffered from work overload or from a poor distribution of their working hours, had their claim for damages dismissed.
For the file, the consequence is clear: the deprivation of effect opens the way to overtime back-pay, whose existence and number the court still verifies, and a claim for damages rests on a demonstrated loss.
Proof of hours is governed by article L3171-4: in the event of a dispute, the employer provides the court with evidence capable of justifying the hours actually worked, and the court forms its view on the basis of that evidence and the evidence provided by the employee.
Where the collective agreement does not provide for monitoring arrangements, the monitoring document required by article L3121-65 shows the number and dates of the days or half-days worked. The week-by-week reconstruction method is set out in our article on calculating overtime back-pay.
Once the agreement is set aside, hours beyond 35 per week carry the premium rate set by the collective agreement, which cannot be lower than 10% (article L3121-33). Failing an agreement, the premium is 25% for each of the first eight overtime hours and 50% beyond that (article L3121-36).
Fictitious example, with no collective-agreement provision on the premium rate or on the annual quota, an hourly rate assumed at €30 and 40-hour weeks established over 40 weeks of the same year:
| Step | Calculation | Amount |
|---|---|---|
| Overtime per week | 40 h - 35 h | 5 h |
| 5 hours at 25% | 5 × €30 × 1.25 | €187.50 |
| Back-pay over 40 weeks | €187.50 × 40 | €7,500 |
The amount excludes the related paid leave and social contributions. The 200 hours in the example remain below the annual overtime quota (contingent annuel) of 220 hours set in the absence of an agreement (article D3121-24): beyond the quota, the hours also give rise to mandatory compensatory rest (contrepartie obligatoire en repos) (article L3121-30), set in the absence of an agreement by article L3121-38.
A claim for payment of wages is time-barred after three years from the day on which the employee knew or should have known the facts enabling them to bring it. The claim may cover the sums due for the last three years from that day or, where the contract has ended, for the three years preceding the termination (article L3245-1).
The deprivation of effect has a flip side. In a judgment of 6 January 2021 (Cass. soc., n° 17-28.234, published in the Bulletin), the Cour de cassation held that, the forfait agreement being deprived of effect, the payment of the working-time reduction days (jours de réduction du temps de travail, "RTT") granted under the agreement had become undue for the duration of the period during which the agreement was suspended. The employer can therefore seek their repayment.
Before valuing the claim, the employee's lawyer therefore lists the working-time reduction days paid under the agreement over the same period. The 2021 judgment did not rule on whether they are to be offset against the overtime back-pay.
Other claims may be added depending on the file, each with its own conditions, such as the indemnity for travail dissimulé (concealed/undeclared work): see how to calculate the indemnity for travail dissimulé.
Plato, which is extending into employment law, calculates overtime and models termination scenarios, with every amount traceable back to its source: see its employment law specialisation. The final review remains the lawyer's.
What does the deprivation of effect change for counting working time?
As long as the agreement remains in effect, the employee is not subject to the statutory 35-hour week (article L3121-62). If it is deprived of effect, they can claim overtime, whose existence and number the court verifies.
When is a forfait-jours agreement deprived of effect?
Where the employer fails to comply with the statutory provisions and the stipulations of the collective agreement intended to protect the employee's safety, health and right to rest (Cass. soc., 11 March 2025, n° 24-10.452, published in the Bulletin).
Is the employee entitled to damages on top of the back-pay?
Not automatically. According to the same judgment (Cass. soc., 11 March 2025, n° 24-10.452), the employer's breach does not, on its own, give rise to a right to compensation: the employee must demonstrate the separate loss that would result from it.
Does the employee have to repay their RTT days?
The employer can ask for it. The Cour de cassation holds that, the agreement being deprived of effect, the payment of the working-time reduction days granted under the agreement has become undue for the duration of the period during which the agreement was suspended (Cass. soc., 6 January 2021, n° 17-28.234).
What is the time limit for bringing a claim after a forfait-jours is deprived of effect?
A claim for payment of wages is time-barred after three years from the day on which the employee knew or should have known the facts. The claim may cover the last three years from that day or, if the contract has ended, the three years preceding the termination (article L3245-1).
What documents should be requested from the employer?
The collective agreement authorising the forfait, the written individual agreement, the records monitoring the days worked and the material relating to the annual workload interviews.