The precautionary suspension suspends the employment contract, but it does not sever the legal link between the employee and their employer. This nuance changes everything for those considering working elsewhere while the disciplinary procedure takes its course. French labor law maintains specific obligations during this period, and ignoring them can turn an already delicate situation into grounds for enhanced dismissal.
Duty of loyalty during the suspension of the employment contract
The contract is suspended, not extinguished. This legal wording has direct consequences: the employee no longer performs their work duties but remains bound by their contractual obligations. Among these, the duty of loyalty fully persists throughout the duration of the precautionary suspension.
The Court of Cassation has confirmed this several times. In a ruling dated January 28, 2015 (n°13-18.354), it recalls that this obligation does not disappear either during a sick leave or during a precautionary suspension. The employee cannot engage in any competing activity or any activity that harms their employer.
The question of whether one can work during a precautionary suspension regularly arises in legal forums, and the answer requires distinguishing several situations depending on the nature of the intended activity.
Competing activity and harmful activity: the key distinction in labor law
Many employees believe that only a directly competing activity is prohibited. A ruling from the Court of Cassation on September 6, 2023 (n°21-24.434) has broadened the scope. A non-competing activity can violate the duty of loyalty if it harms the employer’s interests.
The criterion adopted by the judges is therefore not limited to competition in the strict sense. It encompasses anything that could harm the business: using specific skills for the benefit of a third party in the same sector, indirectly disclosing know-how, mobilizing professional contacts.
In practice, three situations emerge:
- The activity is carried out at a direct competitor: this is the riskiest case. The breach of loyalty will almost systematically be established, even in temporary or short-term contracts.
- The activity is not competing but touches the same sector or the same clients: the risk remains high since the 2023 ruling, as the judge examines the potential harm to the employer.
- The activity is completely unrelated to the employer’s sector (for example: an accountant doing food deliveries): the risk is low, but not nonexistent if the contract contains an exclusivity clause.
Non-compete clause and exclusivity clause: two distinct mechanisms
The non-compete clause generally applies only after the definitive termination of the contract. During the precautionary suspension, it is the general duty of loyalty that protects the employer, not the non-compete clause.
The exclusivity clause, on the other hand, can prohibit any parallel professional activity, including non-competing ones. If your contract contains one, taking a temporary job during the precautionary suspension constitutes a contractual breach, regardless of the sector.
Checking your employment contract before taking any action is not an excessive precaution. Labor law practitioners emphasize that any activity carried out during a precautionary suspension can become an additional disciplinary grievance. The employer can add it to the initial grounds of the ongoing procedure, significantly strengthening their position.
Disciplinary consequences of an activity carried out during the procedure
The employee on precautionary suspension is already subject to a procedure that generally aims for dismissal for serious misconduct. Working for a third party during this period adds an element that the employer can invoke during the preliminary interview or in the dismissal letter.
This additional grievance presents a double danger:
- It can transform a contestable serious misconduct into a serious misconduct that is difficult to contest before the labor court, as it demonstrates disloyal behavior during the procedure itself.
- It can, in some cases, justify a reclassification as gross misconduct if the employer manages to demonstrate an intent to harm, for example, by working for a direct competitor using confidential data.
- It deprives the employee of the argument that the precautionary suspension was unjustified or disproportionate, since their own behavior during the suspension undermines their overall defense.
The absence of remuneration during the precautionary suspension does not constitute a legitimate reason to engage in another activity in the eyes of the case law. An employee facing real financial difficulties has other recourses: contesting the excessive duration of the procedure, requesting an advance before the conciliation board, or seeking interim relief if the employer delays calling the preliminary interview.
Extended precautionary suspension: what recourse for the employee
The precautionary suspension must be quickly followed by a summons to the preliminary interview. When the employer allows an unreasonable delay without initiating the disciplinary procedure, the suspension can be reclassified as a disciplinary suspension by the labor court judge.
This reclassification has a direct consequence: if the employer subsequently issues a dismissal, they will have sanctioned the same facts twice (the disciplinary suspension already counts as a sanction), which renders the dismissal unjustified. The employee can then obtain damages as well as back pay corresponding to the period of suspension.
Rather than seeking temporary employment at the risk of providing the employer with an additional grievance, contesting the regularity of the procedure remains the most protective strategy. An employee who documents the employer’s delay and approaches the labor court places themselves in a much stronger position than one who works elsewhere hoping no one will notice.
The suspended employment contract remains a living contract. As long as the termination is not notified, every action of the employee can be examined through the lens of their contractual obligations. Acting knowingly, checking the clauses of their contract, and prioritizing legal recourse over parallel employment: this is the only approach that does not weaken the employee’s defense before the labor court.