The precautionary suspension halts the execution of the employment contract, but not all contractual obligations. This technical distinction conditions the entire question of parallel salaried activity, including in temporary work.
Duty of loyalty during the suspension of the employment contract
The suspension of the contract does not extinguish the duty of loyalty. The Court of Cassation reminded this in a ruling dated March 9, 2022 (n° 20-19.744): an employee can be dismissed for serious misconduct due to breaches committed during the precautionary suspension, precisely because this obligation survives the suspension.
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We observe that this rule is often misunderstood. The employee retains the right to work, but this right is limited by three cumulative restrictions: the absence of direct competition with the original employer, the absence of using means or files belonging to the company, and the prohibition of any act of disparagement.
In practice, the possibility of working temporarily during a suspension primarily depends on the sector of activity of the proposed assignment. An assignment in a field unrelated to that of the original employer generally poses no problem regarding contractual loyalty.
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Non-competition clause and precautionary suspension: practical articulation
The non-competition clause constitutes an additional lock, distinct from the general duty of loyalty. If the employment contract contains one, it generally only applies after the definitive termination of the contract, not during the simple suspension.
During the precautionary suspension, it is therefore the duty of loyalty (and not the non-competition clause) that limits the scope of authorized activities. But this boundary is not always clear in practice.
We recommend checking three points before accepting any temporary assignment:
- Review the employment contract to identify any potential non-competition clause and its geographical or sectoral scope, even if it is not yet activated
- Ensure that the company using the temporary assignment is not a direct competitor, subcontractor, or strategic client of the original employer
- Make sure that the assignment does not require the use of skills or confidential information acquired at the current employer
Recent case law (Cass. soc. February 26, 2020, n° 18-10.017; December 7, 2022, n° 21-19.132) admits that the employee can engage in an activity for a non-competitive company during a suspension period. The determining criterion remains the actual harm suffered by the original employer.
Temporary work during a suspension: consequences on the ongoing disciplinary procedure
Accepting a temporary assignment during the precautionary suspension does not in itself constitute an additional disciplinary offense. The employer cannot add this fact to the initial grievances unless it demonstrates a breach of loyalty.
However, the employee must be aware of a procedural risk often overlooked: any parallel activity can be invoked during the preliminary meeting prior to dismissal if the employer is aware of it. Even if this activity is lawful, it may influence the employer’s assessment of the sanction or, subsequently, that of the labor court.
The issue also concerns remuneration. The precautionary suspension leads to the suspension of salary. If the dismissal is based on serious or gross misconduct, the suspension period is not retroactively paid. If gross misconduct is not upheld, the employer must pay the corresponding salaries. The income earned from temporary work during this period does not offset any salary arrears that may be owed.
Contractual precautions before signing a temporary assignment contract
The temporary assignment contract is an autonomous employment contract, concluded with the temporary employment agency. Its validity does not depend on the status of the main contract. However, some precautions are necessary.
The employee is not required to inform the temporary agency of their precautionary suspension. No provision of the Labor Code requires this. However, lying about availability or concealing an active contractual commitment could weaken their position in case of litigation.
Holding multiple jobs remains subject to maximum working hours. During the precautionary suspension, the main contract is suspended: there is therefore no effective hourly accumulation. But if the disciplinary procedure results in a sanction other than dismissal (a warning, for example), the employee resumes their position. The temporary assignment must then cease or be compatible with the hours of the main contract.
- Favor short assignments (a few days to a few weeks) to maintain flexibility in case of a quick return to the position
- Keep all documents proving the non-competitive nature of the assignment (contract, job description, sector of activity of the user company)
- Avoid any communication on social media regarding the assignment, which could be interpreted as a breach of discretion
The precautionary suspension places the employee in a zone of financial uncertainty that can last several weeks. Resorting to temporary work remains a viable option as long as the scope of contractual loyalty is respected and the nature of each accepted assignment is documented. The absence of an explicit legal prohibition does not exempt from a case-by-case analysis, depending on the employment contract, the sector of activity, and the ongoing procedure.