Optimal Recruitment Process: Complete HR Guide 2026

Recruitment is one of the rare business procedures where every stage is governed by a legal text: drafting the job advertisement, the information that may be requested, the assessment methods used, the retention of applications, and the exact scope of the commitment made before the employment contract is signed. The last of these stages is also the most costly when mishandled — a poorly drafted promise binds the employer just like a contract.

The job advertisement

The advertisement must contain no discriminatory reference, whether direct or indirect, in relation to the prohibited criteria — origin, sex, age, family status, health, trade union activities, among others. A requirement that appears neutral but in fact excludes a protected category may amount to indirect discrimination.

Three practical obligations must also be met: the advertisement must be written in French, must be dated, and must contain no false statement about the role, the pay or the company.

The employer may remain anonymous in an advertisement placed through an intermediary, but the intermediary must be identified.

What may be asked of a candidate

This is the point most often breached, and the rule is strict.

Information requested may only be used to assess the candidate's ability to hold the position on offer or their professional skills. It must have a direct and necessary link with the role.

Consequently, unless justified by the nature of the role, questions relating to family status, plans to start a family, health, origin, beliefs or trade union membership are excluded. A criminal record extract may only be requested for roles where the law provides for it.

The candidate is required to answer such legitimate requests in good faith. Conversely, a lie about a decisive matter — a qualification required to practise, for example — may justify the contract being declared void or dismissal.

Assessment methods

Recruitment methods and techniques must be relevant to the purpose pursued, and the candidate must be informed beforehand. Results remain confidential.

Two practical implications follow:

• A personality test, a situational exercise or a structured interview are acceptable if they measure skills relevant to the role. Methods lacking established scientific validity can be challenged on relevance grounds.
• The use of automated tools to analyse applications requires that the candidate be informed, and a decision producing legal effects cannot be based solely on automated processing.

The social and economic committee must also be informed of, and consulted beforehand on, recruitment methods and techniques, as well as on any automated processing used to manage applications.

Candidate data

Applications constitute personal data and are subject to processing in their own right: informing individuals, a legal basis, and a limited retention period.

The permitted period is two years from the last contact for retaining an application in a recruitment database, provided the candidate has been informed and is able to object. Beyond that, the data must be deleted.

Notes on subjective impressions recorded during interviews must remain measured and objective: the candidate has a right of access to all data concerning them, including such comments.

Contract offer or unilateral promise: the decisive distinction

This is the point where everyday language and the law diverge, with significant financial consequences.

The employment contract offer is the proposal made to a specific candidate, setting out the role, the pay and the starting date. It may be freely withdrawn as long as the candidate has not accepted it and the stipulated period for reflection has not expired. A lawful withdrawal does not give rise to contractual liability on the employer's part.

The unilateral promise of an employment contract is the act by which the employer grants the candidate the right to choose whether to enter into the contract, the essential terms of which are already determined. Withdrawing it during the option period does not prevent the contract from being formed: the contract is deemed concluded, and its termination is treated as a dismissal, with the corresponding compensation.

The difference lies in the drafting. A document that leaves the candidate free to form the contract by acceptance alone is a promise. Caution therefore calls for explicitly drafting an offer, with a period for reflection and a mention of the right of withdrawal, whenever the commitment is not final.

Hiring

Three formalities determine whether the start of employment is lawful:

• The pre-employment declaration, to be made in the days before hiring. Failure to do so is heavily penalised and constitutes undeclared work.
• The written contract, mandatory for fixed-term, part-time and apprenticeship contracts, and to be provided within a short deadline. A fixed-term contract that is not in writing or is provided late is deemed to be an open-ended contract — a subject covered in our article on the differences between open-ended and fixed-term contracts.
• The information and prevention visit, to be organised within the deadlines applicable to the role.

The probationary period must be expressly stipulated in the contract: it is not presumed. Its maximum length and any renewal depend on the professional category and the applicable collective bargaining agreement.

Two operational matters are best settled at the time of the contract rather than adjusted afterwards: the working-time recording arrangement, which determines how overtime is treated, and any arrangement for remote working, whose reversibility should be provided for so that a return to on-site working does not amount to a variation of the contract.

Usage scenarios

Hiring a manager. The main risk is a poorly characterised hiring promise, often set out in an enthusiastic email. Drafting an explicit offer, with a period for reflection and a right of withdrawal, provides protection as long as the decision is not final.

Using tests. Inform the candidate beforehand, check that the tool is relevant to the role, and consult the social and economic committee on the method chosen.

Building a talent pool. Inform candidates that their data is being retained, set a two-year period from the last contact, and actually purge the data once that period expires. A database that is never purged is an easily identified breach.

Frequently asked questions

Can a candidate be asked whether she plans to have children? No. The question has no direct and necessary link with the role and constitutes discrimination based on family status or sex.

Can a candidate refuse a test? They must be informed beforehand of the methods used. A refusal may end the process, but the test must be relevant to the role for it to be relied upon.

How long should an application be kept? Two years from the last contact, provided the candidate has been informed and is given the opportunity to object.

Can a hiring promise be cancelled? A contract offer may be withdrawn before acceptance. A unilateral promise cannot: its withdrawal does not prevent the contract from being formed, and its termination is treated as a dismissal.

Is a probationary period automatic? No, it must be expressly provided for in the contract. Its length depends on the professional category and the applicable collective bargaining agreement.

What is the risk of omitting the pre-employment declaration? Heavy penalties, as the situation constitutes undeclared work, with the associated criminal and financial consequences.

Key takeaways

Two moments concentrate the legal risk of a recruitment process, and they frame everything else.

At the outset, relevance: every piece of information requested and every method used must have a direct and necessary link with the role. This is the sole criterion, and it removes the need to memorise a list of forbidden questions — it is enough to ask what the answer contributes to assessing suitability for the role.

At the end, characterising the commitment. An offer can be withdrawn; a unilateral promise forms the contract. The difference does not lie in the title of the document but in its drafting, and the cost gap between the two is measured in dismissal compensation. Explicitly drafting one or the other, rather than letting an email decide, is the most cost-effective precaution in the whole process — and it ties in with the general obligations set out in our article on compliance in employment law.