The Court of Cassation, tasked with checking the correct application of the law in the courts, recently forced employers to give their employees more leave to comply with European law.
On Wednesday, September 13, a decision by the French Court of Cassation brought an unexpected twist regarding paid leave. From now on, employees will be able to take more paid leave than before. In particular, the number of approved leaves does not increase annually. Employees still get 2.5 days per month which gives them 5 weeks of leave per year. However, one specific case, which worries many of us every year, stopped the acquisition of days until then.
Therefore, when the employee was on sick leave, the days not worked were not included in the calculation of paid leave. However, in the case of employees who suffered from a non-professional illness that prevented them from working, the Court of Cassation decided that they should have continued to collect leave during that period, applying European Union law. It thus recognized the inconsistency of the French law with Article 31, paragraph 2 of the EU Charter of Fundamental Rights on the right to vacation. Therefore, it judges that “employees who suffer from an illness or are victims of an accident of any nature (professional or non-professional) have the right to exercise the right to paid leave by including in their calculation the period from which they could not work.
Furthermore, the Court of Cassation also established that in the event of an accident at work, the calculation of the right to paid leave will no longer be limited to the first year of work interruption. In other words, a person arrested after an accident at work can therefore accumulate leave during that period, even if it exceeds one year. In 3e In a judgment also dated September 13, the Court of Cassation ruled that the statute of limitations on leave rights (the period in which the worker can no longer use the leave he has earned) begins only if the employer has allowed the worker to use the leave.
So far, the Court of Cassation has not issued any statement that would limit the retroactivity of leave that should have been acquired during sick leave (related to work or not). It therefore leaves the option for employees to request leave to be revoked for periods prior to September 13, 2023. In this way, they could be compensated by taking additional leave or by paying. Since 35% of employees are on sick leave in 2022, this measure taken on the basis of European law therefore risks putting a heavy burden on French companies.