The precautionary suspension halts the employment contract but does not terminate it. This distinction is crucial: the employee remains bound to their employer by all contractual obligations, including those not explicitly stated in the contract. The question of whether one can engage in parallel activities during this suspension is therefore less about a formal prohibition and more about a set of legal constraints that are often underestimated.
Duty of loyalty during the suspension of the employment contract
A suspended contract does not mean an extinguished contract. The duty of loyalty fully survives the precautionary suspension, and this point locks in the possibility of working elsewhere.
In practical terms, an employee on precautionary suspension cannot engage in activities that would harm their employer’s interests. Working temporarily for a direct competitor constitutes a clear breach. We observe that this boundary sometimes extends beyond strict competition: an activity that damages the company’s image or contradicts a contractual clause (such as an exclusivity clause) poses the same problem.
Some employees consider working temporarily during a precautionary suspension with a non-competitive employer, assuming that the absence of competitive ties protects them. In reality, the absence of competition is not enough to neutralize the duty of loyalty. The labor court judge assesses the situation on a case-by-case basis, taking into account the nature of the position held, the sector of activity, and the circumstances of the suspension.
Temporary work and non-competition clause: two distinct regimes not to be confused
Confusion is common. The non-competition clause and the duty of loyalty do not follow the same rules.
The non-competition clause only takes effect after the actual termination of the contract. During the precautionary suspension, it does not apply as such since the contract is still in force. However, if the contract contains an exclusivity clause, it formally prohibits any parallel professional activity, including temporary work, even during the suspension.
- Non-competition clause: activates only after the termination of the contract, with mandatory financial compensation. Not applicable during precautionary suspension.
- Exclusivity clause: prohibits any paid activity for a third party during the contract duration, including suspension. Its violation constitutes an additional fault.
- Duty of loyalty: applies to all employees, with or without a written clause. Covers behaviors that may harm the employer, even indirectly.
We recommend thoroughly reviewing your employment contract before considering any temporary assignments. An employee subject to an exclusivity clause who signs a temporary work contract exposes themselves to an additional grievance in the ongoing disciplinary procedure.
Increased disciplinary risk: temporary work can turn the procedure against the employee
The precautionary suspension precedes a disciplinary sanction, most often a dismissal for serious misconduct. The employee therefore finds themselves in a delicate procedural position. Any activity carried out during this period can be invoked by the employer to strengthen the disciplinary case or justify an additional grievance.
The mechanism is simple. The employer summons the employee to a preliminary meeting and then notifies the sanction. If, in the meantime, the employee has entered into a temporary assignment contract, the employer can argue that this behavior demonstrates a manifest disinterest in the contractual relationship or a violation of the duty of loyalty.
Recent case law has also become stricter regarding degrading managerial behaviors as grounds for serious misconduct. This multiplies situations where a precautionary suspension is quickly imposed, sometimes even before the employee has had time to assess their options. Reacting hastily by accepting a temporary assignment without prior verification increases the risk.
The trap of timing
The duration of the precautionary suspension is not governed by a fixed legal timeframe. The employer must initiate the disciplinary procedure within a reasonable timeframe, or risk having the suspension reclassified as a disciplinary sanction. If the procedure drags on for several weeks, the temptation to work temporarily increases, but the legal risk remains the same from the first to the last day.
A recent dispute shows that judges are increasingly scrutinizing the timing of the procedure. An employer who delays summoning the preliminary meeting after imposing the precautionary suspension weakens their position. The employee can use this argument to contest the measure. However, this does not authorize them to engage in parallel activities.
Compensation and temporary work: the real financial stakes of precautionary suspension
The suspension of salary during precautionary suspension is the main reason employees seek substitute income. If the final sanction is dismissal for serious misconduct, the salary is not retroactively paid for the period of suspension. The employee therefore suffers a financial loss.
If the procedure results in a lesser sanction than dismissal for serious misconduct (warning, disciplinary suspension, dismissal for real and serious cause), the employer must, in principle, pay the salary corresponding to the period of precautionary suspension. This uncertainty complicates decision-making.
- Confirmed dismissal for serious misconduct: no compensation for the period of precautionary suspension, no notice pay.
- Lesser sanction or abandonment of the procedure: full salary payment for the suspension period.
- Dispute before the labor court: if serious misconduct is not upheld, the employee recovers their back pay plus, if applicable, damages.
Temporary work appears as an immediate financial solution, but one must weigh the potential legal cost. An additional grievance for breach of loyalty can adversely affect a labor court case, negating the benefit of a few weeks of assignment.
Prudence dictates not to sign any temporary assignment contract without consulting a labor lawyer or a union representative. The temporary loss of salary, as difficult as it may be, remains less costly than a dismissal for serious misconduct bolstered by a breach of the duty of loyalty found during the procedure.
