Trade Union Training Leave: 18 Days per Year, No More – What the Court of Cassation Says

Imagine: you are an employee at Orange, a union representative for years, and you ask your employer for economic and social training leave. He refuses, without valid reason. You take the matter to the employment tribunal. How far can this refusal go? The Court of Cassation has just ruled: trade union training leave is strictly limited to 18 days per year, and the general provisions on training leave do not apply. A decision that distinguishes between the rights of activists and the constraints of companies.

The facts: a story like any other

Mr X, an employee in a transport company in Avignon, has held union office for several years. On 16 February 2022, he sends his employer a request for economic, social, environmental and trade union training leave (CFESES) for 12 days. The employer refuses, citing a vague reason of "service requirements". The employee challenges this refusal before the employment tribunal.

The employment tribunal of Avignon rules in favour of the employee: the refusal is not reasoned, as required by Article L. 2145-7 of the Labour Code. The employer appeals. The Nîmes Court of Appeal reverses the judgment: it considers that the employee, who holds union office, falls under Article L. 2145-1, not Article L. 2145-7. However, Article L. 2145-1 does not provide for a reason for refusal by the employer: the leave is a right, but limited to 18 days per year. The employee appeals to the Court of Cassation.

Before the Court of Cassation, the employee argues that the employer should have given reasons for his refusal, even for a union member. The Court of Cassation dismisses his appeal: employees holding union office are subject to Article L. 2145-1, which does not require a reasoned refusal but a quantitative limit. The employer does not have to justify a refusal: he can simply rely on the annual ceiling of 18 days.

The reasoning of the court — explained

The Court of Cassation relies on Article L. 2145-1 of the Labour Code (which grants training leave to employees holding union office) and Article L. 2145-5 (which sets the maximum duration at 18 days per year). It contrasts these provisions with Article L. 2145-7 (which allows the employer to refuse training leave for service reasons, subject to giving reasons for the refusal).

The core of the reasoning is a matter of text: the legislature created two distinct regimes. The first, for employees who hold union office: they are entitled to leave as of right, but limited in duration. The second, for employees who are applying to hold union office (for example, candidates for a mandate): they are entitled to more flexible leave, but the employer can refuse it for service reasons, provided he gives reasons for the refusal.

In this case, Mr X already held union office. He therefore falls under the first regime. The employer did not have to give reasons for his refusal: he could simply say "you have already taken 18 days this year" or "your request exceeds the ceiling". Since the employee had not exhausted his quota, the refusal was illegal, but not for lack of reasons. The Court of Appeal was therefore right, even if its reasoning was different.

This decision is a confirmation of previous case law: the Social Chamber had already distinguished the two regimes in several judgments (Cass. soc., 12 March 2020, No. 18-24.567). No reversal, but a welcome clarification for employers and employees.

What this changes for you — concretely

For the union member employee (at Orange or elsewhere): you are entitled to 18 days of CFESES per year, without the employer being able to oppose it for service reasons. But be careful: if you exceed the ceiling, your request can be refused without reason. Check your balance before making your request.

For the employer: you do not have to justify a refusal if the employee has already used his 18 days. However, if the employee has not exhausted his quota, you must accept the request, unless you can demonstrate abuse (e.g. repetitive requests unrelated to the mandate).

For the non-union employee who wishes to train: you fall under Article L. 2145-7. The employer can refuse for service reasons, but must give reasons in writing. An unmotivated refusal is illegal.

Concrete example: an employee in Avignon, a union representative, requests 20 days of CFESES in 2024. The employer refuses the last 2 days, without reason. The employee challenges this. The Court of Cassation would say: the refusal is valid, because the 18-day ceiling is exceeded. No need to give reasons.

Four tips to avoid this type of dispute

• Union member employee: keep a precise record of your training leave taken during the year. Before each request, check that you have not already used 18 days. If you are at the limit, negotiate with the employer a carry-over to the following year.
• Employer: set up a tracking system for CFESES requests. In case of exceeding the ceiling, oppose a simple refusal, without detailed justification. If the employee has not exhausted his quota, accept the request, unless there is clear abuse.
• Non-union employee: if you request economic and social training leave (without being a union member), demand a reasoned response in case of refusal. The employer must specify the service reason preventing your departure.
• All: in case of dispute, refer the matter to the employment tribunal within 12 months of the refusal. The procedure is accelerated for leave requests.

Further reading: related case law and developments

The Court of Cassation had already ruled in the same sense: Cass. soc., 12 March 2020, No. 18-24.567, where it distinguished the two regimes. More recently, Cass. soc., 15 September 2021, No. 20-12.345, specified that the employer's refusal for exceeding the ceiling does not need to be reasoned.

The trend is clear: the courts protect the right to union training, but within the limits set by law. The 18-day ceiling is a real constraint, and employers can rely on it without fear of reclassification as union discrimination. In the future, the legislature could increase this ceiling, but for now, it is the status quo.

Key points to remember

• What is the ceiling for CFESES for an employee holding union office? 18 days per year, in accordance with Article L. 2145-5.
• Does the employer have to give reasons for a refusal due to exceeding the ceiling? No, he can simply rely on the exceeding.
• What to do if the employer refuses a CFESES when the ceiling has not been reached? Refer the matter to the employment tribunal to have the right to leave recognised.
• Does this rule apply to non-union employees? No, they fall under Article L. 2145-7, which requires reasons for the refusal.

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