(Social Law Chamber, Supreme Court, May 12, 2015 n° 13-20349)

An employee went to court in order to challenge his dismissal. He made various claims against his employer, including one for compensation for untaken vacation.

Following an EC directive of 2003 which established the right of all employees to a minimum of 4 weeks of vacation every year, the French Supreme Court previously ruled that it is for the employer to prove that he has taken all steps to enable the employee to take his holidays; Failure to do so led to the payment of compensation by the employer to the employee who did not take all his accrued vacation days, in due proportion of these untaken vacation days.

On May 12, 2015, the French Supreme Court changed the rules on the burden of proof. From now on, it will be shared between the employer and the employee, as follows:

  • The employer has the burden of proof for the first 4 weeks of vacation days, corresponding to the minimum imposed by the EU.
  • The employee will have the burden of proof for any holiday time he may have above these 4 weeks each year.

This will make it easier for the employer but more complex for the courts.