Labour code provisions stipulate that the employer define dates on which its employees may take annual leave within the annual holiday period. The employees must be informed of the dates on which they are entitled to take annual leave at least one month prior to the date itself. Employees who take annual leave without the authorisation of their employer may therefore be considered to have committed serious misconduct, or at the very least to have given the employer fair grounds for termination.

The instant case

Where the employer does not fulfil its obligations in defining employees' annual leave dates, is it still possible for it to claim serious misconduct on the basis of undeclared and unjustified absence? Here, the employee informed the employer that he intended to take leave (but did not state the exact dates he wanted), and requested on three occasions (by registered letter) that the employer define dates for annual leave. The employer failed to respond to the employee's request, and the employee took the time off despite not having obtained express authorisation

The employer claimed that the employee's absence was unjustified and therefore constituted serious misconduct. However, it was held that the employee taking annual leave under such circumstances could not be considered as serious misconduct, particularly given the employer's inability to fulfil its own obligations in respect of annual leave. It was however held that the dismissal was fair if based on absence but not on misconduct.

Effect on employers

This case clearly illustrates the employer's obligations in terms of defining annual leave dates for its employees. However, it is still unclear what an employee should do if the employer fails to respect such obligations.

Until now it has been held (11 October 2000 no 98-42.540, 14 November 2001 no 99-43.454) that the employer is to assume all consequences of its failure to respect its obligations, and could not take action against the employee on this basis. In the instant case, the letters sent to the employer did not include the exact dates that the employee intended to take as leave. It could therefore be assumed that if the employee's letters stated exact dates, the employer would not have been in a position to terminate the employee on the grounds of unauthorised absence. This issue is therefore uncertain and remains open for confirmation.