Acquiring paid holiday
Sick leave and paid holiday
Taking paid holiday
Acquiring paid holiday
Under French law, employees are entitled to 25 days' paid annual leave each year (2.5 days accrued each month). Annual leave rights are calculated using a legal reference period that runs from June 1 to May 31.
Employees who work a typical five-day week during a full-reference year are therefore entitled to five weeks' annual leave.
In 2008 the minimum length of service required by French law in order for employees to start accumulating paid holiday decreased from one month to 10 days, in compliance with EU case law.
However, in a January 24 2012 decision(1) the European Court of Justice (ECJ) stated that the Labour Code could not "limit the entitlement to paid annual leave conferred on all workers by applying a precondition for such entitlement which has the effect of preventing certain workers from benefiting from it".
According to the ECJ, although member states may lay down conditions for the exercise and implementation of the right to paid annual leave, they are not entitled to subject this right to any preconditions or extinguish this right, which is expressly granted to all workers.
The French legislation was consequently amended: as of June 1 2012, employees start acquiring paid holiday from their first effective day of work (Article L3141-3 of the Labour Code).
Another key issue regarding paid holiday pertains to the impact of sick leave on the accrual of holiday.
The existing French legislation differentiates between:
- work-related accidents or illnesses, which entitle an employee to continue accruing paid holiday during his or her leave; and
- non work-related sick leave, which suspends the employment contract and therefore freezes the holiday accrual process.
However, the ECJ recently confirmed that such a rule is not in line with Directive 2003/88/EC.(1) The directive makes no distinction between workers who are absent from work on sick leave during the reference period and those who have worked during the course of that period.
Similarly, Article 7 of the directive does not distinguish between workers based on whether their sick leave during the reference period was caused by a work-related accident or otherwise.
Although currently the rule in France is that an employee on sick leave for non-work-related reasons does not accrue any holiday during his or her absence, the Supreme Court recently declared that employee absence caused by an accident which occurred during the journey to or from work must be considered as work-related leave with regard to paid holiday entitlement.(2)
As a next step, in order for the Supreme Court to align with ECJ case law, it should affirm that sick leave of any nature should not deprive an employee from accruing paid holiday each month. Such case law would have a significant impact on human resources management, due to the high rate of sick leave in France.
Taking paid holiday
While accruing paid holiday in France raises questions, taking accrued paid holiday may also trigger legal exposure for employers, as the Supreme Court recently confirmed.(3)
In the event of a dispute regarding the amount of paid holiday actually taken by an employee, the burden of proof always lies with the employer, which must be able to:
- prove that the employee was put in a position which allowed him or her to take holiday; and
- show evidence of the number of days of paid holiday actually taken by each employee.
Simply citing paid holiday compensation on pay slips is no longer considered as sufficient evidence that an employee has been allowed to take time off.
In order to mitigate legal exposure, it is therefore recommended that companies regularly encourage their employees – in writing – to take their holiday entitlement, and remind them that any untaken holiday will not be carried over to the next holiday period. Employers should also regularly verify that the workload and duties assigned to employees realistically allow them to take some holiday.
For further information on this topic please contact Nathalie Devernay at Bird & Bird AARPI' by telephone (+33 4 78 65 60 00), fax (+33 4 78 65 60 11) or email ([email protected]).
(1) ECJ ruling of January 24 2012 (C-282/10, Dominguez).
(2) Supreme Court ruling of July 3 2012 (Y 08-44.834).