[COVID-19] Can I break a Definite-Term Contract on the basis of force majeure due to the general confinement measures ?

Updated information, as of date of publication

A definite-term contract (“DTC”) may be terminated early, before its term, in particular by mutual agreement, in the event of serious misconduct or force majeure.

Can the COVID-19 epidemic be legally analyzed as force majeure?

According to case law, force majeure means the occurrence of an external event, unforeseeable at the time of execution of the contract and irresistible during its performance.

It is for the judge to determine, on a case-by-case basis, whether the event invoked by the employer to terminate the contract early does indeed have the characteristics of force majeure.

An examination of case law shows that judges have never been inclined to qualify an epidemic as force majeure (H1N1 flu epidemic of 2009: CA Besançon 8-1-2014 No. 12/0229; dengue virus: CA Nancy, 22-11-2010 No. 09/00003, chikungunya virus: CA Basse-Terre, 17-12-2018, RG No. 17/00739, force majeure has always been ruled out).

The situation we face today is of a different magnitude, a “major global health crisis of our time”, in the words of WHO.

More than the epidemic, it is the exceptional measures taken by the Government that could give current events their force majeure character.

The closure of all “non-essential” public-receiving facilities (“PRF”) since 15 March 2020 and the confinement of the population throughout the territory since 17 March 2020 could lead the Labor Court to qualify the current events as force majeure.

However, there is no reason to assert this conclusively, since it will depend on the assessment of the trial judges, who will be able, a posteriori, to measure the impact of the pandemic on the company’s activity and on the impossibility of continuing the definite-term contract in question.

It should be noted that the qualification of “force majeure” given by Bruno Le Maire, Minister of the Economy, will not be imposed on judges due to the principle of separation of powers.

If you invoke force majeure to break the DTC early, it is not without risk. If force majeure is not admitted, the employer will be ordered to pay damages corresponding to the amount of the wages that the employee would have received until the end of the contract initially executed.

We draw your attention to the fact that if the DTC was entered into recently, when the risk of a pandemic was known, it will be extremely difficult to demonstrate that the situation could not have been anticipated when the DTC was concluded.

In any case, if you do not wish to take the risk to have the termination of the definite-term contract called into question by the Labor Court, it is recommended to opt for the partial activity, of which employees on fixed-term contracts can also take advantage.

We are at available to assist you in the management of your definite-term contracts or, more broadly, of your entire staff.