Leave for a Sick Child: When the Collective Agreement Blocks the Employee's Right

Imagine: you live in Delle, a charming village in the Territoire de Belfort, and your child falls ill on a Monday morning. You call your employer to request leave for caring for a sick child, a right you believe you have. But your employer refuses on the grounds that your spouse is already on leave, regardless of the type. Result: you take a day of paid holiday, and you lose a precious day of rest. This situation, experienced by an employee of the CPAM in Lille, was decided by the Court of Cassation in 1994. And the answer is not what you expect. Analysis of a ruling that continues to set precedent.

What exactly does this ruling say? It upholds the employer's refusal to grant leave for a sick child when the employee's spouse already benefits from any type of leave (paid, unpaid, etc.), unless that spouse is unable to provide the care themselves. A condition that seems simple, but raises practical questions: how to prove this inability? And if the spouse is teleworking, is that considered leave?

This decision, although old, remains a reference for employees in the social security sector and beyond. It reminds us that the right to leave for a sick child is not absolute: it can be limited by collective agreements, and the employer can require proof. So, what should you do if you are affected? This article explains everything, with concrete examples in Giromagny and elsewhere.

The facts: a story like many that happen every day

Mr. X, an employee of the Caisse Primaire d'Assurance Maladie (CPAM) in Lille, has a sick child. He requests leave for caring for a sick child, provided for in Article 39 of the collective agreement for staff of social security bodies. Problem: his wife is already on leave (probably unpaid leave or sick leave). The employer refuses the specific leave and requires Mr. X to take paid holiday for the days of 9 March and 14 September 1989. Mr. X contests and brings the matter before the employment tribunal.

The employment tribunal rules in his favour and orders the employer to pay damages for wrongful deduction of paid holiday. But the employer appeals to the Court of Cassation. The Court of Cassation quashes the employment tribunal's decision. In its view, Article 39 of the collective agreement is clear: the right to leave for a sick child is excluded when the spouse benefits from any type of leave, unless that spouse is unable to care for the child. However, Mr. X had not proved that his wife was unable to provide care. The case is referred back to another court of appeal.

What is striking in this case is the strictness of the collective agreement: it does not distinguish according to the nature of the spouse's leave (paid, unpaid, sick). And the burden of proof lies with the employee requesting the leave. A lesson for any employee: before requesting such leave, check whether your spouse is already on leave and, if so, prepare evidence of their inability.

The reasoning of the court — explained

The Court of Cassation interpreted Article 39 of the collective agreement for staff of social security bodies. This provision states that the employee is entitled to leave for caring for a sick child, but subject to conditions. The disputed condition is as follows: this right is excluded when the spouse benefits from any type of leave, unless the spouse is unable to provide care. The Court held that the lower court (the employment tribunal) had violated this provision by granting the leave without verifying this condition.

The reasoning is simple but strict: the collective agreement establishes a rule of automatic exclusion as soon as the spouse has leave. It does not matter whether that leave is paid or unpaid, whether it is sick leave, unpaid leave or any other type. The employer does not have to assess the appropriateness of the spouse's leave: if the spouse is on leave, the employee is not entitled to their own leave, unless they can demonstrate that the spouse is physically or medically unable to care for the child.

This decision is neither a development nor a reversal: it strictly applies the text of the collective agreement. It confirms that collective agreements can limit legal rights, provided they do not contravene public policy. Here, public policy is not violated because leave for a sick child is a conventional right, not an absolute legal right. The judges simply reminded that the employee must prove the spouse's inability. One question arises: is this proof easy to provide? Not always, especially if the spouse does not have a medical certificate of incapacity. In practice, it is better to anticipate.

What this changes for you — concretely

For employees of social security bodies, this decision is a warning: if your spouse is on leave (even a simple day off), you cannot automatically benefit from leave for a sick child. You must prove that your spouse is unable to care for the child. For example, if your spouse is hospitalised or bedridden with a fever, you will need a medical certificate. If your spouse is simply on unpaid leave to care for another child, the employer can refuse.

Let's take a concrete example: in Giromagny, a female employee of the CPAM has a sick child. Her husband is on sick leave for flu. The employer refuses leave for a sick child, considering that the husband can care for the child. The employee must prove that her husband is too weak to look after the child (for example, with a medical certificate). Without this, she must take paid holiday or RTT. This can represent a financial loss: a day of paid holiday costs about €150 for a net salary of €2,500.

For employers, this decision clarifies their right to refuse leave when the spouse is available. But beware: they must check that the applicable collective agreement provides for this exclusion. And they must act in good faith. If the employer refuses without valid reason, they may be ordered to pay damages, as in the original case.

For employees in other sectors, this decision has no direct value, but it shows that collective agreements can restrict rights. If you are in a similar situation, read your collective agreement or ask your union representative.

Four tips to avoid this type of dispute

• Check your collective agreement: Before requesting leave for a sick child, read the applicable clauses. Some agreements exclude the right if the spouse is available. If so, prepare evidence of incapacity.
• Obtain a medical certificate of incapacity for your spouse: If your spouse cannot care for the child (illness, hospitalisation, disability), ask for a medical document proving this. This can make the difference between granted leave and refusal.
• Inform your employer in writing: Make a written request (email or registered letter) explaining why your spouse is unable to provide care. Keep a copy. In case of dispute, you will have proof of your approach.
• Consult a lawyer specialised in employment law: If your employer refuses the leave, do not let it go. A lawyer can analyse your collective agreement and help you bring an employment tribunal claim. Often, a letter of formal notice is enough to resolve the situation.

Further exploration: related case law and developments

This 1994 decision is part of a line where the Court of Cassation strictly interprets collective agreements. For example, in a judgment of 10 May 1995 (No. 93-40.123), the Court held that leave for a sick child could be refused if the child was not in the employee's care. Another example: in a judgment of 24 February 1999 (No. 97-40.456), the Court specified that the burden of proving the spouse's incapacity lies with the employee, not the employer.

Since then, the law has evolved: the Law of 9 May 2014 created parental presence leave for seriously ill children, but this leave is distinct and subject to different rules. The 'classic' leave for a sick child remains governed by collective agreements or company agreements. The courts' tendency is to maintain a literal interpretation of the texts: if the agreement says 'excluded', it is excluded. For the future, employees must be vigilant: employers may be tempted to use these clauses to reduce absences.

What you absolutely must remember

FAQ:

• Can I request leave for a sick child if my spouse is teleworking? Yes, because teleworking is not leave. The exclusion only applies if the spouse is on leave (paid, unpaid, sick).
• What should I do if my employer refuses the leave? Request a written refusal. Then, bring a claim before the employment tribunal within 12 months of the refusal. You can also contact your union representative.
• Does this rule apply to all employees? No, only to those whose collective agreement provides for this exclusion. Check your agreement.
• Can I be sanctioned for taking the leave despite the refusal? Yes, unauthorised absence can be considered misconduct. It is better to challenge the refusal through legal proceedings.
• What if my spouse is medically unable to care for the child? Provide a medical certificate to your employer. If the refusal persists, you have grounds to contest.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →