Hello,

Thank you for your question.

I suspect that the employee will be claiming that she should have been taken on as an employee and not as a "auto-entrepreneur" (self-employed person).

The question will therefore be whether she should be considered an employee regardless of whatever her contract may say and whether it was entered into at her request. If the court agrees, she will then be considered an employee. As a result, her termination will be examined according to French employment law.

Firstly, you will want to insist on the fact that the choice of contract was made at her specific request (you need to provide written proof of this e.e email correspondence). You will want to argue that the court should respect the contractual autonomy of the persons.

Secondly, you will want to highlight any factors that show she was not working under the subordination of the company but had freedom to choose her working methods (again you will need to provide written proof of this).

However, the French courts are likely to follow the extensive existing case law on what amounts to a salaried worker.
Under French law, a person will be considered as a salaried worker if she places herself under the subordination of the employer and is remunerated. Subordination exists where the worker provides her services under the supervision and control of the employer and the employer is given the right to sanction any failures of the worker.

This can be established by one of the following elements: the employee does not choose her working hours, the employee does not provide offices and equipment to perform her work, the employee integrates an existing business entity, etc. Therefore if the court was to consider that the person was subordinate to the employer, she will be considered as an employee.

The court will then look at whether the provisions on termination of the contract were complied with. This will depend in turn on whether the contract is considered a fixed-term contract or an indefinite term contract.

Fourthly, you will want to argue that even if the court finds she should be considered a salaried worker, you would want to argue that the court should consider this a fixed-term contract (contrat à durée déterminée - CDD).

A CDD can be terminated where the worker commits a serious breach (faute grave) as explained here:
http://vosdroits.service-public.fr/particuliers/F40.xhtml

The notion of fautre grave is explained here:
http://vosdroits.service-public.fr/particuliers/F1137.xhtml

At the end of the day, this requires a careful review of all the documents. I would suggest that you obtain the services of a qualified avocat to defend the company.

I hope this answers your questions. Please don't forget to click accept. Thanks in advance.

As I said, it all depends on what the court decides is her correct status. The company's good faith will mean it should not be open to prosecution for willfully trying to circumvent French employment law.

Also, if it's clear she was in the wrong and that the employer complied with all disciplinary procedures, then she should not be able to claim it is wrongful termination.