Annualized part-time work: how to assess whether legal working hours have been reached? Cass.Soc. February 7, 2024

An employee, working part-time (70 hours per month), appealed to the industrial tribunal to reclassify her part-time work as full-time: in a given week, she had worked 36 hours 15 minutes: her weekly working time had therefore been brought to the level of the working hours of a full-time employee.

The company applied a collective agreement on the annualization of part-time work, which provided for variations in working hours of 0 to 20% compared to the monthly reference schedule and that the working hours of part-time employees was less than 1,600 hours.

The judges therefore had to answer the following question:

For a part-time employee whose time is organized over the year, is the ban on increasing working hours up to the legal duration via additional hours, assessed over the week or the period of annual reference?

“Having noted that the weekly overtime noted by the employee was occasional but that it had not been demonstrated that the annual working time of 1,600 hours had been exceeded, the Court of Appeal rightly deduced that the request for reclassification into a full-time employment contract had to be rejected. »

Remember that a part-time employee is one whose working hours are less than full-time (35 hours per week, 151.67 hours per month, 1607 hours over the year). When he works additional hours, these must not have the effect of increasing his working hours to the legal working hours. The Court of Cassation removes an ambiguity on the framework for assessing this absolute limit not to be reached, by the effect of working additional hours, for a part-time employee

multi-weekly.

While it is consistent case law that a weekly or monthly part-time employee must never work additional hours leading to 35 hours per week , the situation is different, according to the Court of Cassation, for a part-time employee. partial multi-weekly:

“[…] in the event of an arrangement of working time over a reference period longer than a week, the additional hours cannot have the effect of bringing the working time completed by a part-time employee to the level of the threshold of the legal duration of work corresponding to the reference period , or, if it is lower, to the level of the conventionally fixed working duration. »

Thus, in the context of the annualization of part-time work, the fact of working, in a given week, or over several weeks, more than 35 hours, does not result in the reclassification of part-time work as full-time work. complete as long as, over the reference year, the threshold of 1,600 hours is not exceeded.

The Court of Cassation confirms the appeal decision, and considers that the employee does not demonstrate that the working hours worked have the effect of exceeding the annual working time set at 1,600 hours by the agreement.

His request to reclassify his part-time contract into a full-time contract is therefore unfounded.

Cass. soc., February 7, 2024, n° 22-17.696