Equipment breakdown, power cut, disaster, bad weather, supply failure: some events temporarily prevent a business from working. Rather than dismissing staff, the employer may place all or part of the workforce on temporary lay-off, provided it follows a procedure, respects a maximum duration and pays a minimum allowance.
What is a temporary lay-off?
It means laying off all or part of the workforce when a collective interruption of work is necessary for circumstantial or accidental reasons (Article 155.1), such as:
- an accident affecting equipment;
- an interruption of motive power;
- a disaster;
- bad weather;
- an accidental shortage of materials, tools or means of transport.
The Code’s list begins with “such as”: it gives examples. Another cause may therefore be relied on, provided it is genuinely circumstantial or accidental and the employer can prove it.
All employees may be affected, whether on an open-ended or a fixed-term contract (Article 155.1).
Temporary lay-off or economic lay-off?
Both mechanisms suspend contracts, but they do not address the same situation:
- Temporary lay-off: an interruption caused by an accidental or circumstantial event; no more than six months, including renewal (Article 155.1).
- Economic lay-off: temporary difficulties, to avoid economic dismissals; no more than three months in any twelve-month period, continuously or in separate periods (Article 155.2). The trade union delegates then have eight working days to respond to the employer’s proposal (Article 155.3).
Beyond these durations, the procedure for dismissal on economic grounds applies (Article 155.8).
What procedure should be followed?
Before deciding, the employer must (Article 155.1):
- inform the trade union delegates, if there are any;
- inform the labour inspector in advance of the measures envisaged, where the rules on temporary lay-off are not set by the collective agreement or by regulations.
An agreement between the parties may specify the duration of the temporary lay-off and the allowance paid to employees during that period (Article 155.1).
In practice, the information is given in writing and states the cause of the interruption, the departments and employees concerned, the start date, the expected duration and the allowance. Keep proof that it was delivered.
Is the employee paid?
Except in cases of force majeure, the employee receives an allowance of at least 30% of his or her basic salary (Article 155.6). An agreement may provide for more.
The employee continues to receive all social security benefits: the employer must take the necessary steps to ensure that the employee’s rights are maintained as if he or she were working (Article 155.6).
What is the employer prohibited from doing?
Throughout the period, in the departments concerned, the employer may in no way (Article 155.5):
- hire new employees;
- have the employees who remain at work do overtime.
What are the effects on the contract?
- The contract is suspended (Article 151.2): the employee does not work, but remains bound by the duty of loyalty to the employer.
- The period counts as working time for seniority (Article 155.5).
- The employee may leave the business without notice, whether to take up another job or for any other reason, after first informing the employer in writing (Article 155.7).
- The term of office of trade union delegates is not suspended (Article 151.4).
- The Code does not list temporary lay-off among the periods treated as actual work for the calculation of paid leave (Article 222.9). A collective agreement or a company agreement may provide for better terms.
Can the lost hours be made up?
Yes. Where a collective interruption of work has a cause other than a strike, a lock-out, paid leave or public holidays not worked, the lost hours may be made up within the following twelve months (Article 221.3):
- they are paid at the normal rate, not at the increased overtime rate;
- making up hours does not allow the maximum daily and weekly working hours to be exceeded;
- the labour inspector is informed of the interruption and of the arrangements for making up the hours.
What if the employee refuses?
Any resulting termination is attributable to the employer, without being wrongful, unless the decision stems from a manifest intention to harm the employee. It is legitimate and entitles the employee to certain payments (Article 155.4).
The labour inspector examines the reasons by bringing the parties together, within eight working days of receiving the letter (Article 155.4).
GHR best practice
- Document the cause of the interruption: official report, technical report, supplier correspondence, weather bulletin.
- Check what the applicable collective agreement provides before informing the labour inspectorate.
- Inform the trade union delegates, then the labour inspector, in writing and before the lay-off begins.
- Set a duration and track the six-month deadline, including renewal.
- Provide in the payroll for the allowance of at least 30% of basic salary and for maintaining social security rights.
- Freeze hiring and overtime in the departments concerned.
- Organise the return to work and, where applicable, the making up of hours within twelve months.
