Split Annual Leave: Does an Employee Who Chooses to Split Lose Their Extra Day?

Imagine you are in Boulogne-Billancourt, in a communications agency. Your employer offers you to take your leave in several instalments: one week in July, another in September. You agree, but at the end of the year, you find you are missing one day of leave. The employer says: "You chose to split, so no extra day." Is this legal?

This is precisely the question the Court of Cassation decided in a judgment of 8 June 1972. The then-current text (Article 54 I of the French Labour Code) provided for an extra day of leave when the splitting of the main leave (more than 12 working days) resulted in taking 3 to 5 days outside the legal period from 1 May to 31 October. But what happens if the employee themselves requests this split? Can the employer refuse the extra day?

The answer is no, said the Court: no distinction is made according to whether the split is requested by the employer or chosen by the employee. Let us decipher together this decision which has practical implications for thousands of employees.

The Facts: A Story That Happens Every Day

In December 1968, a service company (let's call it "Service of 26 December") informs its staff that it grants them the option to take their main leave between 1 May and 31 October. So far, nothing unusual. But an employee, Mr X, decides to split his leave: he takes part in summer, and the remainder (between 3 and 5 days) outside this period, probably in November or February.

Upon his return, Mr X claims the benefit of the extra day of leave provided for by Article 54 I of the French Labour Code. The employer refuses, arguing that this extra day is only due when the split is imposed by the employer, not when it is freely chosen by the employee. According to the company, Mr X had accepted the split, therefore no extra day.

The employee then refers the matter to the industrial tribunal (the competent court for individual labour disputes). He wins at first instance: the judge considers that the text makes no distinction. The employer appeals, but the appeal court confirms. The case goes up to the Court of Cassation, which must finally decide the issue. On 8 June 1972, the Social Chamber delivers its judgment: it dismisses the employer's appeal and confirms the employee's right to the extra day.

The Court's Reasoning – Analysed

The core of the dispute concerned the interpretation of the fourth paragraph of Article 54 I of Book II of the French Labour Code, as amended by Law No. 69-434 of 16 May 1969. This text provides: "An extra working day of leave shall be granted when the number of days of leave taken outside the period from 1 May to 31 October of each year is between three and five days."

The employer argued that this extra day was compensation for the inconvenience caused by a split imposed by the company. But the text does not specify the origin of the split. The Court of Cassation therefore applied a literal interpretation: "The fourth paragraph […] makes no distinction according to whether the splitting of leave exceeding twelve working days provided for in the second paragraph of the same article was requested by the employer or chosen by the employee."

In other words, the law provides for an automatic right as soon as the conditions are met (main leave > 12 working days, split resulting in 3 to 5 days outside the legal period), regardless of who initiated the split. The Court thus rejects the employer's argument and validates the reasoning of the lower courts. This decision is a confirmation of the principle of favouring the employee: in case of doubt, the text is interpreted in their favour. It is neither a reversal nor an evolution, but a classic application of the maxim "ubi lex non distinguit, nec nos distinguere debemus" (where the law does not distinguish, we must not distinguish).

What few people know is that this case law is still relevant today: it has been subsequently reaffirmed, notably in the context of the current French Labour Code (Articles L. 3141-19 et seq.).

What This Changes for You – Practically

For employees, this decision is good news. If you split your main leave (at least 12 working days, i.e. two weeks) and take between 3 and 5 days outside the legal period (1 May – 31 October), you are entitled to an extra day of leave, regardless of who initiated the split. For example, if your employer in Boulogne-Billancourt offers you to take one week in August and one week in February, you can claim an extra day.

But beware: this right is not absolute. It requires that the split concerns a main leave of at least 12 working days. If you only take 10 days, no extra day. Moreover, the number of days outside the period must be between 3 and 5 days. If you take 6 days or more outside the period, the calculation is different (two extra days).

For employers, this decision obliges them to grant this extra day even when they did not impose the split. undefined, I have encountered cases where companies, often small ones, were unaware of this rule and ended up in litigation. A concrete example: an employee in Bobigny, paid at the minimum wage (about €1,800 gross per month), would lose about €85 in salary for a day not granted. Over several years, this can represent significant amounts, especially if dozens of employees are affected.

If you are in this situation, you should check your pay slips and, if necessary, request in writing from your employer the benefit of this extra day. If refused, you can take the matter to the industrial tribunal within 3 years from the date you should have benefited from the day (limitation period for salary claims).

Four Tips to Avoid This Type of Dispute

• Check the duration of your main leave: if you are entitled to more than 12 working days (i.e. 2 weeks), note the number of days taken outside the period (1 May – 31 October). If it is between 3 and 5, you are entitled to an extra day.
• Keep evidence of the split: retain your exchanges with your employer (emails, letters) showing who requested the split. This may be useful in case of a dispute.
• Claim in writing: send a registered letter with acknowledgement of receipt to your employer requesting the extra day of leave, citing Article L. 3141-19 of the current French Labour Code.
• Consult a lawyer lawyer: if your employer refuses, a labour law lawyer can assess your situation and initiate proceedings before the industrial tribunal. Costs may be recovered if you win.

Further Reading: Related Case Law and Developments

This 1972 decision was confirmed by a Court of Cassation judgment of 13 June 1990 (No. 88-40.016) which specifies that the extra day is due even if the split results from a collective agreement. The trend of the courts is constant: protecting the employee by broadly interpreting the texts on annual leave.

Since 1972, the legislation has evolved. Article L. 3141-19 of the current French Labour Code restates the principle: one extra working day if the split leaves 3 to 5 days outside the period, two days if 6 days or more. The case law therefore remains relevant. Today, courts are still seised of similar disputes, particularly on the issue of proof of the split. What the future holds: possible European harmonisation, but for now, the French rule is clear.

Frequently Asked Questions

What is a working day?
A working day is a day that is neither a Sunday nor a public holiday. Generally, Monday to Saturday inclusive, but Saturday is often non-working in collective agreements. For leave purposes, we count Monday to Saturday (6 working days per week).

Can I lose my extra day if I did not request the split?
No, according to this decision, even if you chose the split, you are entitled to it. What matters is that the duration and period conditions are met.

What if my employer refuses to grant this day?
Send them a registered letter with AR reminding them of the law and the case law. If they persist, refer the matter to the industrial tribunal within 3 years. You may also claim damages.

Is this extra day paid?
Yes, it is remunerated like a normal leave day, according to the rule of salary maintenance or 1/10th of total remuneration.

Does the extra day add to the leave balance?
Yes, it must be taken as an additional leave day. The employer cannot pay you in lieu without granting it as time off.

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