Forfait-jours: without genuine autonomy, the agreement is unenforceable
Cass. soc., 3 June 2026, n° 25-11.673
The forfait-jours remains a major source of litigation in French employment law, riddled with pitfalls for employers.
A fresh illustration involving the condition of the employee's autonomy.
As a reminder:
Article L. 3121-58 of the French Labor Code provides that non-cadre employees whose working time cannot be predetermined and who enjoy genuine autonomy in organizing their schedule may fall under the forfait-jours.
This condition is echoed by the Syntec collective bargaining agreement (Article 4.1 of the agreement of 22 June 1999).
The case involved a travelling training consultant with ETAM status subject to an annual forfait of 218 days under a company-level agreement incorporating the provisions of the Syntec collective bargaining agreement.
He disputed being genuinely autonomous, arguing in particular that:
the training sessions he was to deliver were scheduled by other employees and by the various line managers;
he could not schedule the training sessions on the dedicated calendar;
he had to give his line manager access to his electronic calendar so that the latter could schedule the training sessions.
The court of appeal, whose decision is upheld by the French Supreme Court, accepts these arguments — the employee had no freedom whatsoever in organizing his work:
his schedule was in fact determined, in particular, by the company's sales teams, which set with the clients the schedule of his assignments with them;
the employer produced no evidence showing that the employee had any freedom whatsoever in deciding on the dates and content of his assignments with clients.
Of note: the employment contract stipulated that: "Given the significant autonomy the employee enjoys in organizing his schedule (...), the employee's working time falls within the framework of an annual forfait in days."
This clause did not convince the judges: autonomy therefore cannot simply be declared in the contract, it must be reflected in the concrete conditions in which the duties are performed.
The forfait-jours agreement was also held to be unenforceable due to another very common failing: the absence of "effective monitoring of [the employee's] working time, enabling it to ensure compliance with reasonable working time as well as with daily and weekly rest."
The employee therefore fell under the ordinary working-time rules, i.e. 35 hours per week, which led the court of appeal to order the employer to pay, among other things, €40,000 in overtime, as well as €22,485 for exceeding the annual overtime quota.
Sources: