Seniority Leave and Additional Rest Days: Calculation on 6 Days, Not Just Working Days

You are an employer in Perpignan and you grant seniority leave days to your employees. How should they be calculated? On 5 working days (Monday to Friday) or on 6 working days (Monday to Saturday)? The question may seem technical, but it has a direct impact on the number of days actually taken. This decision of the Court of Cassation of 31 January 2012 (No. 10-30.935) provides a clear answer: in principle, seniority leave and additional rest days are calculated like paid leave, i.e. on 6 working days. But beware, exceptions exist. Let's decipher together what this means concretely for you.

The facts: a story like many others

Mr X, an employee of a transport company in Saint-Cyprien, benefited from a company agreement providing for additional seniority leave days and additional rest days. The agreement specified that these days were to be calculated on the whole week, i.e. 6 working days (Monday to Saturday). But Mr X considered that these days should only be taken on working days (Monday to Friday), as was the case for his full-time colleagues. The company, for its part, applied the calculation on 6 days, which reduced the number of effective rest days. Mr X therefore brought the matter before the employment tribunal to have his right to take these days only on working days recognised. The tribunal ruled in his favour, followed by the Court of Appeal. But the employer appealed to the Court of Cassation.

The reasoning of the court — dissected

The Court of Cassation quashed the appeal decision. It recalls the principle of equal treatment between part-time and full-time employees, enshrined in Article L. 3123-11 of the Labour Code. This principle requires that additional seniority leave days be calculated in the same way as paid leave for full-time employees, i.e. on 6 working days. In other words, it does not matter that the employee only works 5 days: the calculation is made on 6 days. The Court specifies, however, two exceptions: if the rest days are compensatory in nature (e.g. compensatory rest for overtime) or if the company calculates all leave in working days. In this case, the company agreement excluded certain rest periods (public holidays, deferred rest for Sunday work, compensatory rest) from its blocked calculation system, but this was not sufficient to demonstrate that the disputed days were compensatory. The lower courts should have verified this nature before granting the claim.

What this changes for you — concretely

If you are an employer in Perpignan or elsewhere, this decision confirms your ability to calculate seniority leave and additional rest days on 6 working days, provided you do so uniformly for all employees. However, be careful: if you usually calculate paid leave in working days, you must do the same for these additional days. For employees, be aware that calculation on 6 days reduces the number of effective working days of rest: a seniority day taken on a Monday counts as one day, but if taken on a Saturday, it also counts. In practice, if you work Monday to Friday, you will need to take more days to obtain the same number of effective working days of rest. Example with figures: with 5 seniority days calculated on 6 days, you only benefit from 4.17 effective working days. In Saint-Cyprien, an employer applying this calculation must ensure that his collective agreement is clear and complies with the law.

Four tips to avoid this type of dispute

• Tip 1: Draft your company agreement or contract clearly. Specify whether the calculation of additional leave is in working days or working days, and apply the same rule for all employees.
• Tip 2: Check the nature of each rest period. If you grant compensatory rest (overtime, night work, Sunday work), they must be calculated in working days. Do not mix them with seniority leave.
• Tip 3: Train your HR managers. Incorrect application can lead to costly litigation. In Perpignan, a simple reminder of the rules can avoid employment tribunal proceedings.
• Tip 4: Keep a precise record of rest periods. In the event of an inspection, you must justify the calculation applied. Keep collective agreements and schedules.

Further reading: related case law and developments

This decision is part of a consistent line of the Court of Cassation. For example, in a judgment of 15 December 2010 (No. 09-42.604), it had already held that leave for family events is calculated in working days. The trend is therefore towards compliance with the principle of equal treatment, without distinguishing according to the type of leave. However, the Court leaves some leeway for companies that calculate all leave in working days. Since 2012, no major legislative development has occurred on this point. But be careful: if you change your practice during the contract, you must follow the procedure for modifying the employment contract.

Key points to remember

FAQ:

• Question: Can I take my seniority leave only on working days?
  Answer: No, unless your company calculates all leave in working days. In principle, the calculation is on 6 working days.
• Question: What should I do if my employer calculates my additional rest days in working days for some employees and in working days for others?
  Answer: This may constitute a breach of equal treatment. You can bring the matter before the employment tribunal.
• Question: Are compensatory rest periods affected?
  Answer: No, they must be calculated in working days because they compensate for work performed outside normal hours.
• Question: Can I impose a calculation in working days by company agreement?
  Answer: Yes, if you apply it uniformly to all employees. But you must then calculate all leave (paid, seniority, etc.) in the same way.
• Question: What is the time limit for challenging an incorrect calculation?
  Answer: You have up to 2 years from the date you became aware of the facts to take action before the employment tribunal.

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