Optimal Recruitment Process: Complete HR Guide 2026

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

The job advertisement

The advertisement may not contain any discriminatory reference, direct or indirect, based on the prohibited criteria — origin, sex, age, marital status, health condition, trade union activities, among others. A seemingly neutral requirement that in practice excludes a protected category can amount to indirect discrimination.

Three practical obligations are added to this: the advertisement must be drafted in French, must be dated, and must not contain any false claim about the position, the remuneration or the company.

Anonymity of the employer is possible in an advertisement published by an intermediary, but the intermediary must be identified.

What can be asked of a candidate

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

The information requested may only serve toassess the candidate's ability to fill the proposed position or their professional skills. It must have a direct and necessary link with the position.

Consequently, unless justified by the nature of the position, questions relating to marital status, plans for parenthood, health condition, origins, beliefs, or trade union membership are excluded. Requesting a criminal record extract is only lawful for positions where the law provides for it.

The candidate is required to answer these legitimate requests in good faith. Conversely, a lie concerning a decisive element — a qualification required to practise — can justify the nullity of the contract or a dismissal.

Assessment methods

The methods and techniques used to assist recruitment must be relevant to the purpose pursued, and the candidate must be informed beforehand. The results remain confidential.

Two practical implications:

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

The works council must also be informed and consulted in advance on the methods or techniques used to assist recruitment, as well as on any automated processing for managing applications.

Candidates' 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 retention period is two years from the last contact for keeping an application in a recruitment database, provided the candidate has been informed of this and can object. Beyond that, the data must be deleted.

Notes relating to subjective assessments made during interviews must remain measured and objective: the candidate has a right of access to all data concerning them, including these comments.

Job offer or unilateral promise: the decisive distinction

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

A job offer is the proposal made to a specific candidate, specifying the position, the remuneration and the start date. It can be freely withdrawn as long as the candidate has not accepted it and the stipulated reflection period has not expired. Its proper withdrawal does not give rise to the employer's contractual liability.

A unilateral promise of an employment contract is the act by which the employer grants the candidate the right to opt for entering into the contract, the essential terms of which are already determined. Its withdrawal during the option period does not prevent the formation of the contract: the contract is deemed concluded, and the termination is treated as a dismissal, with the corresponding indemnities.

The difference lies in the drafting. A document that leaves the candidate the power to form the contract by their acceptance alone is a promise. It is therefore prudent to explicitly draft an offer, with a reflection period and a mention of the right of withdrawal, when the commitment is not final.

Hiring

Three formalities determine the regularity of taking up the position:

• The pre-employment declaration, to be made in the days preceding the hiring. Its omission is heavily penalised and constitutes undeclared work.
• The written contract, mandatory for fixed-term, part-time and apprenticeship contracts, and to be transmitted within a short period. A fixed-term contract that is not in writing or is transmitted after the deadline 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 periods applicable to the position.

The probationary period must be expressly stipulated in the contract: it cannot be presumed. Its maximum duration and any possible renewal depend on the professional category and the collective bargaining agreement.

Two operational arrangements are better fixed at the contract stage rather than adjusted afterwards: the method of counting working time, on which the treatment of overtime depends, and any use of remote work, whose reversibility must be provided for so that a return on-site does not amount to a modification of the contract.

Usage scenarios

Recruiting an executive. The main risk is a poorly qualified job promise, often formalised by an enthusiastic email. Drafting an explicit offer, with a reflection period and a right of withdrawal, provides protection as long as the decision is not final.

Using tests. Inform the candidate in advance, check the relevance of the tool with respect to the position, and consult the works council on the method chosen.

Building a talent pool. Inform candidates of the retention, set a period of two years from the last contact, and actually purge the data at the end of that period. A database that is never purged is an easily identifiable failing.

Frequently asked questions

Can a female candidate be asked whether she plans to have children? No. The question has no direct and necessary link with the position and constitutes discrimination based on marital 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 position 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 allowed to object.

Can a job promise be cancelled? A job offer can be withdrawn before acceptance. A unilateral promise cannot: its withdrawal does not prevent the formation of the contract, and the termination is treated as a dismissal.

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

What are the risks 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 start, relevance: every piece of information requested and every method used must have a direct and necessary link with the position. This is the single criterion, and it makes it unnecessary to memorise a list of forbidden questions — one only needs to ask what the answer contributes to assessing suitability for the position.

At the end, the characterisation of 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 indemnities. Explicitly drafting one or the other, rather than letting an email decide, is the most cost-effective precaution in the entire process — and it ties in with the general obligations set out in our article on compliance in employment law.