The requalification (reclassification by the court) of a CDD (contrat à durée déterminée, a fixed-term contract) as a CDI (contrat à durée indéterminée, an open-ended contract) gives entitlement to a requalification indemnity (indemnité de requalification) of at least one month's salary (article L1245-2 of the Labour Code). The termination of the contract is then assessed under the rules on dismissal: if it is found to be without real and serious cause, notice, severance pay and the barème Macron (the statutory scale capping unfair-dismissal awards, article L1235-3) are added.
Whatever its ground, a CDD may neither have as its purpose nor as its effect the lasting filling of a job linked to the normal and permanent activity of the company (article L1242-1). It may only be concluded for a specific and temporary task, in the cases exhaustively listed in article L1242-2: replacing an absent employee, a temporary increase in activity, seasonal jobs or jobs where fixed-term contracts are customary (emplois d'usage), among others.
Article L1245-1 lists the irregularities that cause the contract to be deemed concluded for an indefinite term. The main ones, for the employee's lawyer:
| Irregularity | Provision breached |
|---|---|
| Use outside the authorised cases, or for a lasting job | L1242-1 and L1242-2 |
| No written contract, or ground not precisely defined | L1242-12, paragraph 1 |
| Working relationship continued after the term has expired | L1243-11, paragraph 1 |
| Waiting period (délai de carence) not observed between two contracts for the same post | L1244-3-1 |
One case stands apart. Late transmission of the contract to the employee, who must receive it no later than two working days after being hired (article L1242-13), cannot on its own lead to requalification since the ordinance of 20 December 2017. It gives entitlement to an indemnity that may not exceed one month's salary (article L1245-1, second paragraph).
Where the conseil de prud'hommes (France's labour court) upholds the claim, it awards the employee an indemnity, payable by the employer, which may not be less than one month's salary (article L1245-2). This is a floor: the judge may award more.
The Cour de cassation has clarified its base. It held that the minimum is calculated on the last monthly salary received before the court was seised, within the company that had concluded the CDD (Cass. soc., 26 April 2017, n° 15-26.817), then that it is assessed according to the average monthly salary due under the contract in the last state of the working relationship before the court was seised, including all elements of salary, even those paid at intervals longer than a month (Cass. soc., 8 February 2023, n° 21-16.824). An annual bonus therefore enters into this average.
The procedure is expedited: the claim is brought directly before the bureau de jugement (the trial panel of the conseil de prud'hommes), which rules on the merits within one month of being seised (article L1245-2).
At the end of a CDD, the employee receives an end-of-contract payment (indemnité de fin de contrat, commonly called the indemnité de précarité) equal to 10% of the total gross remuneration paid (article L1243-8), save in the cases where it is not due (article L1243-10: seasonal contracts or contracts in sectors where fixed-term contracts are customary, refusal of an equivalent CDI, early termination at the employee's initiative, gross misconduct or force majeure, among others).
Requalification does not call it into question. Where it was received at the end of the contract, it remains the employee's notwithstanding a later requalification as a CDI (Cass. soc., 30 March 2005, n° 03-42.667).
Article L1245-2 reserves the application of the rules on termination of an open-ended contract. Once the relationship has been requalified, the end of the contract is therefore assessed as a dismissal: the judge who requalifies must determine whether the termination letter amounts to a dismissal letter and whether the grounds it states constitute materially verifiable complaints making it possible to decide whether the dismissal has a real and serious cause (Cass. soc., 20 October 2015, n° 14-23.712, published in the Bulletin).
If the dismissal is found to be without real and serious cause, the employee may claim, in addition to the requalification indemnity:
Two cases are exceptions. If the contract was suspended following a workplace accident when the term was reached, the termination is null and void, not merely without real and serious cause (Cass. soc., 14 November 2018, n° 17-18.891). The same applies where the termination on expiry of the term occurs after notification of a requalification decision that is provisionally enforceable (Cass. soc., 18 December 2013, n° 12-27.383). The barème Macron does not apply to nullity.
Length of service weighs on the sums due on termination. Where requalification is based on the ground for using the CDD, the employee may rely on length of service going back to the first irregular contract (Cass. soc., 29 January 2020, n° 18-15.359). Over a succession of contracts, this changes the length of the notice period, the entitlement to severance pay and the applicable line of the scale.
Take an employee who worked a series of CDDs without interruption for 18 months, concluded for a temporary increase in activity when the extra activity was in fact part of the company's normal and permanent activity. Her average gross monthly salary, bonuses included, is 2,400 euros, the company has more than eleven employees, and the last contract ended at its term. The arrangement is requalified from the first contract, and the termination is found to be without real and serious cause.
| Item | Calculation | Amount |
|---|---|---|
| Requalification indemnity (floor) | 1 month's salary | 2,400 euros |
| Notice (6 months to less than 2 years of service) | 1 month's salary | 2,400 euros |
| Paid leave on notice | 10% of the notice | 240 euros |
| Statutory severance pay | 1/4 × 2,400 euros × 1.5 years | 900 euros |
| Barème Macron (1 full year) | 1 to 2 months' salary | 2,400 to 4,800 euros |
| Total | 8,340 to 10,740 euros |
The indemnité de précarité already received at the end of each contract is kept on top. The length of the notice period follows article L1234-1 (one month between six months and two years of service), the severance pay follows article R1234-2 (a quarter of a month per year of service), and the scale range follows the "1 year" line of article L1235-3, on the basis of 18 months, i.e. one full year. A more favourable collective agreement changes these amounts.
The requalification claim falls under the two-year limitation period applicable to the performance of the contract (article L1471-1, paragraph 1). Its starting point depends on the basis relied on:
| Basis of the claim | Starting point of the two-year period |
|---|---|
| Ground for using the CDD (permanent job, unauthorised case) | Term of the contract or, for a succession, term of the last contract (Cass. soc., 29 January 2020, n° 18-15.359) |
| A required particular missing from the contract | Conclusion of the contract (Cass. soc., 3 May 2018, n° 16-26.437) |
Over a succession of contracts, the two periods therefore do not run from the same day: they must be checked separately, basis by basis.
The file is built exhibit by exhibit: each contract, each renewal amendment, the payslips, and the evidence showing that the post was part of the normal and permanent activity. The valuation follows the length of service retained and the characterisation of the termination.
To assess the whole picture objectively, Plato calculates the sums due and models the termination scenarios from the exhibits in the file, with each amount staying traceable back to its source: this is the purpose of its employment law specialisation. The final check remains the lawyer's.
What is the minimum amount of the requalification indemnity for a CDD?
One month's salary, payable by the employer (article L1245-2). The judge may award more. The minimum is calculated on the average monthly salary under the contract in its last state, including bonuses paid at intervals longer than a month.
Is late transmission of the CDD enough to obtain requalification?
No. Since the ordinance of 20 December 2017, a contract handed to the employee more than two working days late cannot, on its own, lead to requalification. It gives entitlement to an indemnity of one month's salary at most (article L1245-1).
Must the employee repay the indemnité de précarité after a requalification?
No. The end-of-contract payment received at the end of the CDD remains the employee's despite the later requalification as a CDI (Cass. soc., 30 March 2005, n° 03-42.667).
What happens to the end of the contract after requalification?
It is assessed under the rules on dismissal: the judge determines whether the termination letter amounts to a dismissal letter and states verifiable complaints (Cass. soc., 20 October 2015, n° 14-23.712). If found to be without real and serious cause, it gives entitlement to notice, severance pay and the barème Macron. It is null and void if the contract was suspended because of a workplace accident.
What is the time limit for a CDD requalification claim?
Two years (article L1471-1). The period runs from the term of the last contract if the claim concerns the ground for using the CDD, and from the conclusion of the contract if it concerns a missing particular.
What length of service applies where successive CDDs are requalified?
Where requalification is based on the ground for using the CDD, the employee may rely on length of service going back to the first irregular contract (Cass. soc., 29 January 2020, n° 18-15.359). It is used to calculate the notice, the severance pay and the scale.