The provisional suspension suspends the employee’s work contract pending a disciplinary decision, usually a dismissal for serious misconduct. During this period, the employee no longer works, does not receive a salary, and finds themselves in a financially strained situation. The question of whether they can sign a temporary assignment to compensate for this loss of income requires a nuanced answer, as labor law does not formally prohibit it, but several legal mechanisms can turn this initiative into a trap.
Duty of loyalty during the suspension of the work contract
The work contract is suspended, not terminated. This distinction changes everything. The employee remains legally bound to their employer, which maintains certain obligations even in the absence of work performance.
The duty of loyalty survives the suspension of the contract. It prohibits the employee from engaging in any activity that would harm the interests of their employer. Working for a direct competitor, using confidential information, or soliciting the company’s clients during the provisional suspension would constitute a clear violation of this duty.
The possibility of working as a temp during a provisional suspension largely depends on the industry and the nature of the assignments accepted. An assignment in a field unrelated to the employer’s activity poses fewer difficulties than an assignment with a competitor.
Non-competition clause and exclusivity clause: two locks to check
Before accepting any temporary assignment, the employee must review their work contract to identify two clauses that may block any external activity.
- The non-competition clause, if valid (limited in time, space, and accompanied by financial compensation), prohibits the employee from working in a competing sector. It sometimes applies as soon as the contract is suspended, depending on its wording. Case law requires that the clause be proportionate to the legitimate interests of the company to be enforceable.
- The exclusivity clause prevents the employee from engaging in any other professional activity, even non-competitive, during the duration of the contract. If the contract contains such a clause, temporary work is generally excluded as long as the contract is not terminated.
- The absence of these two clauses does not guarantee total freedom: the duty of loyalty mentioned above applies regardless of any written clause.
An employee who ignores an exclusivity clause during their provisional suspension provides the employer with an additional disciplinary reason, which can significantly worsen their situation during the ongoing procedure.
Risk of reclassification: when the provisional suspension lasts too long
The provisional suspension does not have a maximum duration set by law, but case law requires the employer to act quickly. A ruling from the Paris Court of Appeal (Pole 6, ch. 4, RG n°14/13678) considered that a suspension notified ten days before the invitation to the preliminary interview, without justification for the delay, had a disciplinary nature.
This reclassification has direct consequences. If the suspension is reclassified as a disciplinary sanction, the employer can no longer dismiss for the same facts, as the principle of “non bis in idem” prohibits punishing the same fault twice. The dismissal then loses its real and serious cause.
For the employee considering temporary work, this time pressure on the employer is a factor to consider. The longer the procedure drags on, the more the financial situation deteriorates, but the more the employee has legal arguments to contest the suspension itself.
Impact on remuneration in case of reclassification
If the provisional suspension ultimately results in a lesser sanction than dismissal for serious misconduct (for example, a simple warning or a short disciplinary suspension), the employer must pay the employee the wages corresponding to the entire period of provisional suspension. The income earned from temporary work during this period could complicate the calculation of the amounts owed.
Protected employee: an even more restrictive regime
Employee representatives and union delegates benefit from a protected status that modifies the rules applicable to provisional suspension. For these employees, the dismissal procedure requires prior authorization from the labor inspection, which mechanically extends the timelines.
A protected employee provisionally suspended finds themselves in a potentially long wait. Accepting a temporary assignment in this context exposes them to the same risk of violating loyalty, but with increased visibility: the labor inspector examines the entire file, including the employee’s behavior during the procedure.
Concrete strategy before accepting a temporary assignment
The employee who wishes to work as a temp during their provisional suspension must proceed in steps to limit risks.
- Check for the existence of an exclusivity or non-competition clause in the work contract. In case of doubt about their validity, consult a labor lawyer before signing anything.
- Choose assignments unrelated to the current employer’s industry. An assignment in a completely different field reduces the risk of violating the duty of loyalty.
- Keep a written record of all steps taken, including the start and end dates of the assignment, to justify that the activity did not cause any harm to the employer.
- Anticipate the possibility of reclassification of the suspension: the temporary income earned may be taken into account in the calculation of the compensation owed by the employer if the procedure turns in favor of the employee.
No provision of the Labor Code explicitly prohibits an employee under provisional suspension from engaging in temporary work. The legal framework relies on general obligations (loyalty, contractual exclusivity, non-competition) whose scope varies depending on each situation. An employee who respects these limits and chooses assignments far removed from their employer’s scope significantly reduces legal risk, without completely eliminating it.
