The precautionary suspension halts the employee’s work contract, but it does not sever the contractual link with the employer. This legal distinction directly affects the ability to engage in another professional activity during the suspension period, including temporary work.
Duty of loyalty during the suspension of the employment contract
During a precautionary suspension, the employment contract is suspended: the employee no longer provides services, and the employer may not pay wages (which will be adjusted according to the outcome of the procedure). However, the employee remains bound to their employer by a duty of loyalty that does not disappear with the suspension.
This duty particularly prohibits working for a direct competitor or harming the company’s interests. The question of whether one can work temporarily during a precautionary suspension thus primarily depends on the sector of activity of the proposed assignment and the clauses in the initial contract.
In practical terms, accepting a temporary assignment in a field unrelated to the employer’s activity does not, in itself, constitute a violation of this duty. On the other hand, an assignment with a competitor may be classified as misconduct, which would worsen the situation for an employee already subject to a disciplinary procedure.
Non-competition clause and exclusivity clause: two distinct barriers
Beyond the general duty of loyalty, two contractual clauses can block any parallel activity.
The exclusivity clause
If the employment contract contains a exclusivity clause, the employee has committed to work only for that employer. During the suspension of the contract, this clause remains generally applicable. Engaging in a temporary assignment would then constitute a violation of a contractual stipulation, even if the contract is temporarily suspended.
The non-competition clause
The non-competition clause typically takes effect after the contract is terminated, not during its execution. During a precautionary suspension, it is the duty of loyalty (and not the non-competition clause) that governs the employee’s behavior. Confusion between these two mechanisms is common, but their legal scopes are different.
Before accepting a temporary assignment, reviewing the employment contract is therefore a necessary preliminary step. The points to examine include:
- Presence or absence of an exclusivity clause, and its potential limitation in time or to certain sectors
- Exact wording of the duty of loyalty, sometimes reinforced by amendments or internal regulations
- Sector of activity of the proposed temporary assignment compared to that of the current employer
Risk of reclassifying the precautionary suspension as a disciplinary sanction
One aspect that is rarely addressed concerns the delay between the notification of the precautionary suspension and the summons to the preliminary interview. Recent decisions show that judges easily reclassify the precautionary measure as a disciplinary suspension when the employer delays initiating the procedure.
Even a few calendar days without objective justification can suffice to strip the measure of its precautionary nature. The direct consequence: the principle of “non bis in idem” applies, and the employer can no longer sanction the same facts a second time. For the employee, this reclassification changes the situation, as the disciplinary suspension has a fixed duration and distinct legal effects.
If the precautionary suspension is reclassified as disciplinary, the suspension period is considered the sanction itself. The employee regains their position at the end of this period. Working temporarily during a disciplinary suspension raises the same loyalty questions, but within a more predictable timeframe.
Practical consequences of a temporary assignment during the procedure
Accepting a temporary assignment during a precautionary suspension is not prohibited by any specific law. The absence of a formal prohibition does not mean there is no risk. In practice, the employee exposes themselves to several problematic situations:
- The employer discovers the assignment and uses it as an aggravating factor during the preliminary interview or before the labor court
- The temporary assignment is in the same sector of activity, which constitutes a breach of the duty of loyalty
- The contract contains an exclusivity clause, and violating this clause constitutes an independent ground for dismissal
- The temporary agency requires knowledge of the candidate’s contractual situation, and an inaccurate declaration may lead to the termination of the assignment
Thus, an employee considering a temporary assignment should consult a labor law attorney or a staff representative before signing a contract. The main risk is not the assignment itself, but how the employer might use it in the context of the ongoing procedure.
The question of remuneration
During the precautionary suspension, salary is generally suspended. If the procedure results in dismissal for serious misconduct, the employee will not receive back pay for the suspension period. If the dismissal is pronounced for a less serious fault, or if the procedure is abandoned, the employer will have to regularize the remuneration.
This financial uncertainty explains why some employees seek temporary income through temporary work. This approach is understandable, but it should not compromise the employee’s defense in the pending disciplinary procedure.
An employee on precautionary suspension retains the freedom to work, provided they respect their duty of loyalty and the clauses of their contract. Checking these two points before any dealings with a temporary agency remains the most effective precaution to prevent a temporary financial solution from turning into a damaging argument.