Understanding the Trial Period: A Guide to Recruiting Ideal Candidates for Management Positions

First of all, remember that the trial period is the one that is at the very beginning of the contractual relationship and that allows you to assess the skills of your employee, particularly in terms of their experience.

It allows the employee to assess whether the functions he occupies are suitable for him.

Throughout this period, you, like your employee, have the possibility of freely breaking the employment contract that unites you, and this, without justification.

At the end of the trial period, the employment contract becomes final.

First of all, it must be borne in mind that the trial period and the possibility of renewing it cannot be presumed.

First of all, remember that the trial period is the one that is at the very beginning of the contractual relationship and that allows you to assess the skills of your employee, particularly in terms of their experience.

It allows the employee to assess whether the functions he occupies are suitable for him.

Throughout this period, you, like your employee, have the possibility of freely breaking the employment contract that unites you, and this, without justification.

At the end of the trial period, the employment contract becomes final.

First of all, it must be borne in mind that the trial period and the possibility of renewing it cannot be presumed.

Indeed, both the trial period and its renewal must be expressly stipulated in the letter of engagement or the employment contract in order to exist. In the absence of a contractual clause, no trial period or possibility of renewal can be applied (CCourt of Cassation, Social Chamber. March 29, 2023, n°21-18.326).

Thus, if nothing is indicated in the employment contract or in the letter of engagement, the contract is final from the first day. To break the employment contract, you will then have to justify a valid reason for dismissal or negotiate a contractual termination with your employee.

The renewal of the trial period can only be done with the express agreement of your employee: ask him to write you a letter clearly indicating that he agrees to renew his trial period or make him affix the clear mention “I accept the renewal of my trial period”
accompanied by his signature and the date. Indeed, according to the Court of Cassation, the mere signature of the employee on the letter delivered by hand extending the trial period cannot constitute the employee’s agreement to its renewal.

If it is not mandatory, the trial period appears to be essential. Plan ahead! If the candidate seemed ideal to you during the recruitment interviews, there is nothing better than being able to assess their skills in the situation and being able to appreciate their interpersonal skills and their ability to adapt within their team and your company. It makes it possible to rectify a possible error of recruitment.

The maximum duration of the initial trial period is set by the Labor Code.

Its duration differs according to the socio-professional category of your employee. The legally defined duration for a manager is a maximum of 4 months (Labour Code, art. L.1221-19).

The duration of the trial period, including renewal, cannot exceed 8 months for executives.

The duration of the trial period provided for by the contract may be, under strict conditions, longer or shorter than that legally fixed.

There are 3 exceptions to the legally fixed durations:

• a trial period of shorter duration may be provided for in the employment contract or the letter of appointment;
• a shorter duration applies if it is provided for by collective agreements concluded since June 26, 2008. If the provisions predate this date, they are no longer applicable;
• a longer term may apply if it is fixed by a branch agreement concluded before June 26, 2008 and if its duration is deemed reasonable. This last possibility will soon be removed (law of March 9, 2023 known as DDADUE) because it was contrary to European law. This provision will take effect from September 10, 2023.

Keep in mind the following situations:

• the manager was on fixed-term contract before being hired: the duration of the CDD(s) is deducted from the trial period provided for in the new employment contract;
• the employee was on an internship with your company within 3 months of the end of the internship: the duration of the internship is deducted from the trial period, without this having the effect of reducing the latter by more than half, unless there are more favorable contractual provisions. If this recruitment is carried out in a job corresponding to the activities that you had entrusted to the intern, the duration of the internship is deducted in full from the trial period.

Whether the trial period is expressed in days, weeks or months, the calculation is done on a calendar basis, unless otherwise agreed or customary.

The start of the trial period corresponds to the start of the execution of the employment contract, it cannot be deferred.

In the event of suspension of the employment contract, for example on the occasion of sick leave or because of the closure of your company for annual leave, the end of the trial period is postponed accordingly.

The advantage of providing for a trial period is the fact of being able to break the contract freely throughout its duration. You do not have to justify your decision.

However, your employee has the same freedom.

The termination of the trial period therefore does not consist of either a dismissal or a resignation.

No specific procedure is legally imposed. Check your collective agreement and your collective agreements, which may provide for a specific procedure and deadlines to be respected. However, if your employee is a protected employee, it is necessary to seek authorization from the labor inspectorate.

In the event of termination of the trial period, the duration of which is at least one week, you are required to respect a certain period of notice, the duration of which depends on the duration of your employee’s presence within your company ( Labor Code, article L. 1221-25):

• less than 8 days: 24 hours;
• between 8 days and 1 month: 48 hours;
• between 1 and 3 months: 2 weeks;
• more than 3 months: 1 month.

If contractual provisions provide for a longer period, respect it.

In the event of termination by your employee, the latter must notify you before leaving the company, at least 48 hours in advance. This period is reduced to 24 hours if the duration of the employee’s presence in your company is less than 8 days.

At the end of the trial period, your employee’s engagement becomes final without you having to take any action.