Can you keep the replacement contract during the holidays?
One of your employees has asked to take leave after her maternity leave. If you hired a replacement for her maternity leave, can you keep the replacement contract during her leave?
What is a replacement contract?
Interim worker
The substitution contract (formerly, interim contract) allows the hiring of an employee (interim) to replace another employee who leaves the company temporarily and who is entitled to have his or her job reserved for him or her.
This reservation means that the substitution contract is terminated as soon as the employee being replaced returns to his or her job.
Examples of replacementcontracts
This contract can be concluded, for example, if the absence is due to temporary incapacity, suspension of the contract for childbirth and childcare or childcare leave.
The replacement contract is a temporary contract
Duration of the replacement contract
In general, the duration of the replacement contract should coincide with the time that the person being replaced remains on a suspended contract.
However, the provision of services by the substitute worker may begin before the absence of the person being replaced, in order to give the latter time to receive a minimum of training.
Conversion of the contract
The non-reinstatement of the person being replaced does not in itself lead to the conversion of the replacement contract into a permanent contract.
However:
- If the substitute continues in his or her post after the cause that justified his or her contract has been exhausted, such contract shall become indefinite.
- The reason for the replacement must be stated in writing in the contract. If not, it is presumed to be concluded for an indefinite period, unless there is evidence to the contrary.
Duties of the employee
It is accepted that the substitute worker does not perform the same functions as the one being replaced.
In other words, another employee may be assigned to take the place of the absent worker, so that the contracted worker can carry out the functions that the company considers necessary.
What about holidays?
It is not possible
Absence for holidays is not a situation of suspension of the employment contract with the right to reserve a place, but an interruption of the provision of services.
The courts consider that you, as an employer, are fully aware of the fact that your staff is on holidays and breaks, so this is a foreseeable circumstance and you cannot use the replacement contract to cover these holidays.
It is in your interest
Since the last labour reform, the replacement of workers during their holidays must be carried out through a temporary contract due to production circumstances.
However, what happens if these holidays are taken after paid childcare leave?
Birth of a child
Even if the substituted worker has taken parental leave, followed – in an uninterrupted manner – by accumulated breastfeeding leave and due holidays (which is a very common case), the substitution contract must be terminated at the end of the breastfeeding leave and before the start of the holidays.
This has been confirmed by the courts.
Attention!
If the replacement’s contract is not terminated before the absent employee starts her holiday, you risk that the termination of the replacement’s contract after the replacement’s holiday will be qualified as an unfair dismissal, as it has become indefinite.
In a nutshell
If your employee is on holiday after her maternity leave and you have hired a replacement, you must terminate her contract before the replaced employee starts her holiday.
