The right to paid leave updated by the Court of Cassation

In several decisions of September 13, 2023, the Court of Cassation recognized the non-compliance of French law with European law concerning paid leave for employees.

From now on, workers on sick leave continue to acquire leave rights, without time limit.

In addition,the prescription of the right to leave only begins after the employer has allowed the employee to exercise this right.

I. French law versus European law

The case highlights the fact that the provisions of French law regarding paid leave were in contradiction with European law, in particular European Directive 2003/88/EC . This directive states that every worker has the right to paid annual leave of at least four weeks.

However, French law limited the acquisition of paid leave in certain situations, notably in the event of work stoppage due to illness or a professional accident, which was contrary to the European directive.

The Court of Cassation found that French law was in contradiction with European law by limiting the acquisition of paid leave in certain circumstances.

II. Paid sick leave

The Court of Cassation ruled on the question of whether employees whose employment contract is suspended due to an ordinary illness (i.e. non-occupational illness) continued to acquire paid leave rights during this period of suspension.

French law, before this decision, specified that these periods did not give rise to the right to acquire new paid leave.

However, the Court of Cassation has decided that under European Directive 2003/88/EC, every worker is entitled to paid annual leave, without distinction between periods work and periods of non-occupational illness.

Thus, the Court of Cassation ruled that employees on ordinary sick leave continued to acquire paid leave rights during this period of suspension of their contract.

III. The right to acquire paid leave cannot be limited to one year

The Court of Cassation establishes an important rule: the right to acquire paid leave cannot be limited to one year in the event of work stoppage due to illness or to a professional accident.

In this case, an employee was the victim of a work accident in 2014 and had been off work for one year and eight months. He contested the limitation of his paid vacation compensation to one year.

The question put to the Court was whether this limitation was consistent with European law.

Article L. 3141-5 of the French Labor Code set the time limit on the acquisition of paid leave rights at one year. This provision was found to be non-compliant with European law.

From now on, an employee on sick leave due to illness or professional accident can continue to acquire paid leave rights without any temporal limitation.

IV. Carryover of paid leave acquired previously to parental educational leave.

An employee had taken parental leave to care for her child. However, she had acquired paid leave before taking this parental leave. Upon her return from parental leave, she asked her employer to postpone this unused paid leave to a later date, in accordance with French legislation which allows such postponement in certain situations. The employer refused this request for postponement.

The dispute concerned the question of whether paid leave acquired before parental educational leave could be carried over and used after the employee's return.< /strong>

The Court of Cassation ruled in favor of the employee by affirming that the postponement of paid leave acquired previously to parental educational leave was possible.

V. The starting point for the prescription of the right to paid leave.

A trainer had provided training for more than ten years as a self-employed worker. She had obtained the reclassification of her contractual relationship into an employment contract after a legal dispute. Subsequently, she claimed compensation for the paid leave she had not taken during this period.

The question raised was to know from when the limitation period for his claim for compensation for unused paid leave began.

According to French law, the three-year limitation period begins to run when the employee becomes aware of the facts allowing him to exercise his right to compensation.

However, this interpretation isin contradiction with European law, which specifies that the loss of the right to paid leave can only occur if the worker has actually had the possibility to exercise this right in due time.

VI. Retroactivity of paid leave rights?

The issue of retroactivity therefore means that employers could be required to pay retroactive compensation for paid leave entitlements not granted in the past.

However, the Court of Cassation did not specifically detail how this retroactivity should be managed, nor whether it should be applied retroactively to all previous cases.