Split Leave: Additional Days Even if the Employee is the Cause of the Split (Cass. 1973)

You are a restaurateur in Ouistreham, and your favourite waiter asks you if he can take his leave in two parts: one week in May, the rest in September. You agree, thinking you are doing the right thing. But on his return, he claims two additional days of leave due to the split. You wonder: is it really due? The answer is yes, and this has been the case since 1973, as the Court of Cassation ruled in a decision that remains authoritative.

This question, though simple on the surface, divided lower courts for years. Should the employee who chooses to split their leave be rewarded? Or, on the contrary, are these additional days merely compensation for constraints imposed by the employer? The Court of Cassation put an end to the debate with a clear ruling: the law makes no distinction as to the origin of the split.

Let us delve into this case more than fifty years old, but whose principles still permeate the law of paid leave today. Whether you are an employer in Vire, an employee in Caen, or simply curious to understand your rights, this article will enlighten you.

The Facts: A Story Like Many Others

Mr. X, owner of a hotel-restaurant in Vire, employs several staff. In 1970, one of them, Mr. Y, asks his employer to split his main leave: three weeks taken in May-June, the rest in September. Mr. X agrees. The employee thus takes 18 working days in the first part (from 1 May to 31 October) and 6 working days in the second part (outside the legal period).

Now, Article 54-1 of Book II of the Labour Code (old version) provides that when leave is split, the employee is entitled to two working days of additional leave if the second part amounts to at least six days. But the text is ambiguous: are these days due even if the split is requested by the employee? The employer thinks not: it is the employee who chose to split, he cannot also demand a reward.

The dispute arises when Mr. Y claims his two additional days. Mr. X refuses. The employee brings the matter before the industrial tribunal of Vire, which rules in his favour. The employer appeals. The Caen Court of Appeal upholds the judgment. Mr. X appeals to the Court of Cassation.

Before the Court of Cassation, the employer argues that the additional days are only compensation for the inconvenience suffered by the employee when the employer imposes the split. The employee, on the other hand, maintains that the letter of the law does not distinguish. The Court must decide.

The Reasoning of the Court — Dissected

The Court of Cassation will examine Article 54-1, paragraph 4, of Book II of the Labour Code, in its wording resulting from Law No. 69-434 of 16 May 1969. This text provides: "Two working days of additional leave shall be granted when the number of days of leave taken outside the period from 1 May to 31 October is at least equal to six."

The judges note that paragraph 4 makes no reference to the origin of the split. It does not say "when the employer splits" or "if the employee requests it." It sets a single condition: that the second part (the one outside the summer period) is at least six days. It does not matter who proposed the split.

The Court therefore rejects the employer's argument. It recalls that labour law is protective of the employee and that exceptions to acquired rights must be express. However, the legislature did not provide for an exception. Consequently, the Caen Court of Appeal made a correct application of the law. The appeal is dismissed.

This decision is a confirmation of the letter of the text, but it puts an end to a controversy. Some courts had held that the additional days were only due in the case of an imposed split, because they compensated for a constraint. The Court of Cassation sweeps away this interpretation: the right is attached to the objective fact of the split, not to its cause.

Furthermore, the Court imposes a fine of 50 francs (a modest, symbolic sum) and orders the employer to pay civil damages. This shows that non-compliance with the rule is not trivial.

What This Changes for You — Practically

For employees: if you request to split your leave and the second part (taken outside the period from 1 May to 31 October) is at least six working days, you are entitled to two additional days of leave. These days are added to your annual leave entitlement. For example, an employee in Ouistreham who takes 18 days in May and 6 days in September gains 2 extra days, i.e., 26 days in total (24 + 2).

For employers: you must grant these additional days, whether the split is your initiative or the employee's. Refusing exposes you to penalties (damages, fines). Check your schedules: if an employee takes leave in September, count the days outside the period properly. If the second part reaches 6 days, you must add 2 days.

For property professionals (property managers, syndics): you may face claims from building caretakers or concierges. The same rules apply. Ensure your contracts and practices comply with this obligation.

A worked example: in Vire, an employer who refuses these 2 days to an employee paid €12 per hour (based on 35h) will have to pay, in addition to the back pay (2 days × 7h × €12 = €168 gross), damages that could amount to several hundred euros. Not to mention legal costs.

Four Tips to Avoid This Type of Dispute

• Read Article L.3141-23 of the Labour Code (current version of the old Article 54-1): it still provides for additional days for splitting. Knowing the rule is the first protection.
• Document the origin of the split: if the employee requests to split, have them sign a written document. This does not change the entitlement to additional days, but proves it was not the employer's choice (useful in case of dispute on other points).
• Calculate the days outside the period precisely: the reference period is from 1 May to 31 October. Any day of leave taken in November, December, January, February, March or April counts towards the second part. Keep a tracking table.
• Anticipate requests: if you know an employee will split, integrate the 2 additional days into the leave planning from the beginning of the year. Avoid nasty surprises.

Further Reading: Related Case Law and Developments

The Court of Cassation has confirmed this position several times. For example, in a judgment of 13 May 1980 (No. 78-41.358), it held that additional days are due even when the split results from a collective agreement. The rule is therefore consistent.

In 2016, the Court of Cassation clarified (No. 14-29.077) that the split may be requested by the employer, the employee, or result from the collective agreement. In all cases, the additional days are due if the condition of six days outside the period is met.

This case law remains current. The current Labour Code (Art. L.3141-23) uses the same terms. The only notable change is that since 2008, the additional days are not deducted from the split leave quota (they are added). The trend is therefore protective for employees.

Frequently Asked Questions

1. Can I refuse the additional days if the employee himself requested the split? No, as confirmed by this 1973 judgment. The right is attached to the fact of the split, not its origin.
2. What should I do if my employer refuses to grant me these two days? You can bring the matter before the industrial tribunal within 2 years of the refusal. Gather evidence of your request for split and the leave dates.
3. Are these additional days paid? Yes, they are remunerated like ordinary leave days, based on your usual salary. They are added to your annual entitlement.
4. Must the split be at least 6 days outside the period? Yes, that is the condition. If the second part is 5 days or less, no additional day is due.
5. Does this rule apply to fixed-term contracts and part-time workers? Yes, all employees are concerned, regardless of their contract, as long as they benefit from paid leave.

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