Optimal Recruitment Process: Complete HR 2026 Guide

Recruitment is one of the few business procedures where every step is governed by a legal text: the drafting of the job posting, the information that may be requested, the evaluation methods used, the retention of applications, and the exact scope of the commitment made before the contract is signed. The last of these steps is also the most costly when poorly handled — a badly drafted offer binds the employer just like a contract.

The job posting

The posting must not contain any discriminatory reference, direct or indirect, based on prohibited criteria — origin, sex, age, family status, health, trade union activity, among others. A seemingly neutral requirement that in practice excludes a protected category may constitute indirect discrimination.

Three practical obligations also apply: the posting must be written in French, be dated, and contain no false claims about the position, the pay, or the company.

The employer may remain anonymous in a posting published through an intermediary, but the intermediary itself 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 toassess the candidate's ability to hold the position offered or their professional skills. It must have a direct and necessary link with the position.

Consequently, unless justified by the nature of the job, questions relating to family status, plans to have children, health, origin, beliefs, or trade union membership are excluded. A request for a criminal record extract is lawful only for positions where the law specifically requires it.

The candidate is required to answer these legitimate requests in good faith. Conversely, a lie about a decisive element — a qualification required to practice a profession — may justify voiding the contract or grounds for dismissal.

Evaluation methods

The methods and techniques used to assist recruitment must be relevant to the purpose pursued, and the candidate must be informed of them beforehand. The 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 position. Methods lacking established scientific validity can be challenged on grounds of relevance.
• The use of automated tools to screen applications requires informing the candidate, and a decision producing legal effects cannot be based solely on automated processing.

The works council must also be informed and consulted beforehand on the recruitment methods or techniques used, 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: information to 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 and can object. Beyond that, the data must be deleted.

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

Job offer or unilateral promise: the decisive distinction

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

A job offer is the proposal made to a specific candidate, specifying the position, the pay, and the starting date. It may be freely withdrawn as long as the candidate has not accepted it and any stipulated reflection period has not expired. A proper withdrawal does not trigger the employer's contractual liability.

A unilateral promise of employment contract is the act by which the employer grants the candidate the right to opt for entering into the contract, whose essential terms are already determined. Withdrawing it during the option period does not prevent the contract from being formed: the contract is deemed concluded, and terminating it is treated as a dismissal, with the corresponding severance payments.

The difference lies in the drafting. A document that leaves the candidate free to form the contract by their acceptance alone is a promise. Caution therefore calls for explicitly drafting an offer, with a reflection period and a stated 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 filed in the days before hiring. Failure to do so is heavily penalized and constitutes undeclared work.
• A 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 topic covered in our article on the differences between open-ended and fixed-term contracts.
• The occupational health information and prevention visit, to be arranged within the deadlines applicable to the position.

The probationary period must be expressly stated in the contract: it cannot be presumed. Its maximum length and any renewal depend on the employee's professional category and the applicable collective bargaining agreement.

Two operational terms are best fixed at the outset in the contract rather than adjusted later: the method for counting working time, which determines how overtime is handled, and any provision for remote work, whose reversibility should be specified to avoid a return to the workplace being treated as a change to the contract.

Usage scenarios

Hiring a manager. The main risk is a poorly characterized job promise, often set out in 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 beforehand, check that the tool is relevant to the position, and consult the works council on the method chosen.

Building a candidate pool. Inform candidates about data retention, set a two-year period 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 failure.

Frequently asked questions

Can an employer ask a female candidate whether she plans to have children? No. The question has no direct and necessary link with the position and constitutes discrimination based on family status or sex.

Can a candidate refuse to take 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 enforceable.

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

Can a job promise be cancelled? A job offer can be withdrawn before acceptance. A unilateral promise cannot: withdrawing it does not prevent the contract from being formed, and ending it 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 failing to file the pre-employment declaration? Heavy penalties, since the situation constitutes undeclared work, with the related 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 sole criterion, and it makes it unnecessary to memorize a list of forbidden questions — one simply needs to ask what the answer reveals about the candidate's fitness for the job.

At the end, how the commitment is characterized. A job offer can be withdrawn, while a unilateral promise forms the contract. The difference is not a matter of the document's title but of its drafting, and the cost gap between the two is measured in severance payments. 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 labour law.