The indemnity for travail dissimulé (concealed/undeclared work) is equal to six months' salary, owed to the employee where the working relationship is terminated (article L8223-1 of the Labour Code). It is cumulative with the termination indemnities and must be claimed within two years. The employee must still prove that the concealment was intentional.
Article L8223-1 provides that, where the working relationship is terminated, an employee whom an employer has used in the circumstances of article L8221-3, or by committing the acts provided for in article L8221-5, is entitled to an indemnité forfaitaire (a fixed lump-sum indemnity set by statute) equal to six months' salary.
The text sets two conditions: concealment within the meaning of articles L8221-3 or L8221-5, which must be intentional (see below), and a termination of the working relationship. The indemnity arises on termination (Cass. soc., 4 September 2024, n° 22-22.860). The Cour de cassation holds that it is due whatever the characterisation of the termination (Cass. soc., 12 October 2004, n° 02-44.666, published in the Bulletin), in a case where the lower courts had refused it on the ground that the working relationship had ended by mutual agreement, and it has allowed it in favour of an employee who had resigned (Cass. soc., 16 November 2005, n° 03-44.464, unpublished). The 2004 and 2005 judgments cited in this article were handed down under former article L324-11-1, which became L8223-1.
For the employee's lawyer, the most useful text is article L8221-5. It deems the following acts by the employer to constitute travail dissimulé by concealment of salaried employment:
| Case | What the employer did |
|---|---|
| 1° Pre-hiring declaration (déclaration préalable à l'embauche) | Intentionally evading the formality of article L1221-10 |
| 2° Payslip | Intentionally evading its issue, or stating on it a number of hours lower than the hours actually worked |
| 3° Social security declarations | Intentionally evading the declarations relating to salaries or social security contributions |
The second case is the one met by the lawyer of an employee claiming overtime: the payslip states fewer hours than those actually worked. The text excepts the case where that statement results from a collective agreement on the organisation of working time.
Article L8221-5 targets intentional failures, and the Cour de cassation also requires intent where the payslip states fewer hours than those worked. Overtime missing from the payslips is not enough: intent cannot be inferred from the mere absence of overtime on the payslips (Cass. soc., 29 June 2005, n° 04-40.758, published in the Bulletin).
The Cour de cassation applies the same requirement to fixed working-time agreements (conventions de forfait). In a published judgment of 16 June 2015 (Cass. soc., n° 14-16.953), it held that intent cannot be inferred from the mere application of an unlawful convention de forfait, and quashed the decision of the court of appeal, which had awarded the indemnity on that ground alone.
The file must therefore bring together, with supporting exhibits, the elements establishing that the concealment was intentional, beyond the mere gap between the hours worked and the hours declared.
The text sets a fixed lump sum: six months' salary. The Cour de cassation characterises this indemnity as a civil penalty (sanction civile) (Cass. soc., 6 February 2013, n° 11-23.738, published in the Bulletin).
In an unpublished judgment of 5 May 2011 (Cass. soc., n° 10-11.967), the Cour de cassation quashed the decision of a court of appeal that had calculated the indemnity on six months of the last salary received before termination, without overtime: the amount must be calculated taking into account the overtime worked by the employee during the last six months before termination.
Example. An employee receives a basic salary of 2,500 euros gross per month. Over the last six months before termination, he worked undeclared overtime, the back-pay for which amounts to 300 euros gross per month.
| Item | Calculation | Amount |
|---|---|---|
| Reference monthly salary | 2,500 euros + 300 euros | 2,800 euros |
| Indemnité forfaitaire | 6 × 2,800 euros | 16,800 euros |
Calculated on the basic salary alone, the indemnity would be 15,000 euros (6 × 2,500 euros): the difference of 1,800 euros is due to the overtime.
The termination indemnities. The Cour de cassation held, in view of the nature of the indemnité forfaitaire as a civil penalty, that article L8223-1 does not preclude its being combined with indemnities of any kind to which the employee is entitled where the working relationship is terminated (Cass. soc., 6 February 2013, n° 11-23.738). Depending on the file, the following are therefore added: the severance pay (indemnité de licenciement), payment in lieu of notice and, if the termination is found to be unjustified, the award for dismissal without real and serious cause.
The salary arrears. Unpaid overtime remains due as salary: the overtime back-pay is calculated separately.
Damages. Independently of the civil penalty under article L8223-1, every employee is entitled to compensation for the loss caused by the employer's fault in performing its obligations (Cass. soc., 14 April 2010, n° 08-43.124, published in the Bulletin). In that case, which concerned an employee employed without being declared, the Court quashed the decision of the court of appeal, which had refused damages for deprivation of the right to unemployment benefit and daily sickness benefits (indemnités journalières), on the ground that the indemnité forfaitaire already compensated that loss.
The claim for payment of the indemnité forfaitaire falls under the two-year limitation period of article L1471-1, paragraph 1, applicable to claims relating to the performance of the contract. The Cour de cassation so held in a published judgment of 4 September 2024 (Cass. soc., n° 22-22.860): the length of the limitation period is determined by the nature of the claim, and the indemnity arises on termination of the contract by reason of the employer's failure to perform its obligations. In that case, the claim brought within two years of termination was held admissible.
The time limits are not the same for all the claims in a single file:
| Claim | Time limit | Text |
|---|---|---|
| Indemnité forfaitaire for travail dissimulé | Two years; the claim arises on termination | L1471-1, paragraph 1 |
| Salary arrears (overtime) | Three years; if the contract has been terminated, sums due for the three years preceding termination | L3245-1 |
| Claim relating to the termination of the contract, save for the exceptions provided for in the text | Twelve months from notification of the termination | L1471-1, paragraph 2 |
The valuation of a travail dissimulé file comes down to three linked calculations: the overtime back-pay, the resulting base for the last six months, then the termination indemnities added to it. Each depends on the same exhibits: payslips, records of hours, exchanges with the employer.
For the rest of the file, Plato, which is extending into employment law, calculates overtime back-pay and models the termination scenarios, with each amount staying traceable back to its source: see its employment law specialisation. The final check remains the lawyer's.
What is the amount of the indemnity for travail dissimulé?
Six months' salary (article L8223-1 of the Labour Code). The amount is a fixed lump sum, set by the text. It is due where the working relationship is terminated, if the concealment is intentional.
Does overtime count in calculating the indemnité forfaitaire?
An unpublished judgment of the Cour de cassation has so held: the amount must be calculated taking into account the overtime worked during the last six months before termination of the contract (Cass. soc., 5 May 2011, n° 10-11.967).
Can the employee combine the indemnité forfaitaire with the termination indemnities?
Yes. In a published judgment of 6 February 2013 (n° 11-23.738), the Cour de cassation allows the indemnité forfaitaire to be combined with indemnities of any kind due on termination, because of its nature as a civil penalty.
Is an overtime back-pay claim enough to obtain the indemnity?
No. The concealment must be intentional. Intent cannot be inferred from the mere absence of overtime on the payslips (Cass. soc., 29 June 2005, n° 04-40.758), nor from the mere application of an unlawful convention de forfait (Cass. soc., 16 June 2015, n° 14-16.953).
Is the indemnity due if the employee resigned?
Yes. The Cour de cassation holds that the indemnité forfaitaire is due whatever the characterisation of the termination (Cass. soc., 12 October 2004, n° 02-44.666, published in the Bulletin), and has allowed it in favour of an employee who had resigned (Cass. soc., 16 November 2005, n° 03-44.464, unpublished). These judgments were handed down under former article L324-11-1, which became L8223-1.
Within what time limit must the indemnity for travail dissimulé be claimed?
Two years, under article L1471-1, paragraph 1 (Cass. soc., 4 September 2024, n° 22-22.860). The salary arrears claim that accompanies it is time-barred after three years.