When a company recruits, it is common for it to make a promise of employment to a candidate before formalizing this intention through an employment contract. But what exactly is a promise of employment? Does it have legal value? In this article, we will dissect the notion of the promise of employment, its legal value, its implications for the employer and the candidate, as well as its practical modalities.
The promise of employment: definition and scope
The promise of employment is a unilateral undertaking by which an employer offers a position to a candidate, specifying the conditions of employment – such as remuneration or the date of taking up employment. This promise can be made orally or in writing, but for evidentiary reasons, it should be formalized in writing.
The promise of employment has legal value as long as it includes specific and binding elements for the employer. It must mention the position, the remuneration, the date of taking office, and possibly the duration of the contract if it is for a fixed term.
The employment contract: a consecration of the promise of employment
Following the promise of employment, the employer is required to draw up an employment contract. The promise of employment is indeed worth an employment contract if it is sufficiently precise. The terms of the promise must therefore be respected in the final contract.
Thus, if the employer offers a permanent position in their promise of employment, they can not then offer a fixed-term contract to the candidate. Similarly, remuneration and functions cannot be reduced.
The job offer: an alternative to the promise of employment
The job offer is another form of unilateral commitment by the employer, but it has a less strong legal scope than the promise of employment. It is generally limited to indicating the position to be filled and the skills required, without specifying the conditions of service.
The job offer does not commit the employer to hire the candidate who responds. It therefore does not have the same legal value as the promise of employment, and cannot be invoked to require the conclusion of an employment contract.
The employee’s rights in the event of the employer’s withdrawal
If the employer withdraws after making a promise of employment, the candidate has rights. Indeed, with the promise of employment having the value of an employment contract, the candidate can claim damages for abusive termination of the contract.
These damages may cover the prejudice suffered by the candidate as a result of the loss of the job (for example, if they resigned from their previous post), as well as non-pecuniary damage.
The candidate’s withdrawal period
For his part, the candidate can also retract after accepting a promise of employment. However, they are generally required to comply with a withdrawal period. This deadline is not set by law, but it is usually a few days.
If the candidate withdraws after this period, the employer may claim damages for non-compliance with the undertaking. However, case law is generally lenient with candidates, and does not impose heavy penalties on them in case of withdrawal.
How to formalize a promise of employment?
To guarantee its legal value, the promise of employment must be formalized in a precise manner. It can be done verbally, but it is recommended to write it to facilitate its proof in case of dispute. Indeed, writing makes it possible to specify the terms of the hiring proposal and to clearly mark the employer’s commitment to the candidate.
The promise of employment must indicate the position offered, the remuneration envisaged, and the date of taking up the position. It may also specify the duration of the employment contract if it is for a fixed term. In short, the more detailed and precise the promise of employment, the more weight it has legally.
In some cases, it may also contain a withdrawal clause, which allows the employer to withdraw in return for the payment of an indemnity to the candidate. This clause must be drafted carefully to avoid any ambiguity.
Is the promise of employment mandatory?
The promise of employment is not a legal obligation for the employer. Indeed, recruitment can be done directly through the conclusion of an employment contract. Nevertheless, it can be a good way for the employer to secure their recruitment process and show their commitment to the candidate.
The use of the promise of employment is therefore a matter of strategy for the employer. It can allow them to reassure a quality candidate they wish to recruit while giving them time to finalize the terms of the employment contract. On the other hand, it legally binds the employer and can cost them dearly in case of withdrawal without legitimate reason.
The employer’s commitment in the event of a promise of employment
The promise of employment binds the employer as long as it is sufficiently precise. This principle has been recalled by the Court of Cassation (Cass. Soc.) in several decisions. Thus, if the employer withdraws without legitimate reason after having made a promise of employment, they may be ordered to pay damages to the candidate.
It is therefore important for an employer to think carefully before making a promise of employment. This involves properly assessing the company’s ability to honor its commitments, but also identifying the qualifications and expectations of the candidate.
Conclusion
The promise of employment is a valuable tool in the recruitment process. It allows the employer to secure their recruitment process and reassure the candidate. However, it has a real legal value and commits the employer to respect their commitments. It is therefore essential to know the implications and to draft it carefully. In case of doubt, it may be useful to be accompanied by a professional in labor law.
Be careful, however, not to neglect this one, because a promise of employment not kept may also impact your e-reputation. It is essential to limit the number of negative opinions that could be posted on our employee review platform, and with this in mind, it is therefore advisable not to dangle candidates.
FAQs
What is a promise of employment and what is its legal value?
A promise of employment is a unilateral commitment by the employer to a candidate, offering them a position with specific conditions. To be legally valid, the promise must be written and precise, mentioning in particular the position, the remuneration, the date of taking office, and possibly the duration of the contract. It has legal value and can be considered as an employment contract as long as it is formal and binding.
What are the consequences in case of non-compliance with a promise of employment by the employer?
In the event of non-compliance with the promise of employment by the employer, the candidate may claim damages for abusive termination of the contract. These damages may cover the moral and financial damage suffered by the candidate. If the candidate accepts the promise and then retracts within a few days, the employer can also claim damages. However, sanctions are usually lenient towards candidates in this case.
