Paid Leave and Seniority: A 1978 Decision Still Relevant Today

Picture the scene: you are a craftsman in Boulogne-Billancourt, with a team of five workers. Every winter, one of them, originally from North Africa, takes three months off to return to his country. You have tolerated this absence for years, without paying him. One day, he demands payment for those months as if they were paid leave, arguing that this is a practice in the building industry. What should you do?

The Court of Cassation ruled on this question in 1978 in a landmark case. The issue: whether prolonged absences, even if tolerated, can be treated as actual working time for calculating seniority. The answer is no, but with nuances worth examining.

Whether you are an employer in the construction industry or an employee, this decision concerns you. It reminds us that practices do not automatically create rights, and only clear texts – such as the collective agreement – define the rules of the game. Analysis.

The Facts: A Story Like Many Others

We are in the 1970s. Mr. X, a construction worker in Paris, habitually takes several months off each winter to return to his home country. His employer, a construction company based in Boulogne-Billancourt, tolerates these absences without paying him. But when it comes to calculating his seniority for determining his rights to paid leave and holiday bonus, a conflict arises.

Mr. X argues that these winter absences should be considered actual working time because they are "common practice" in the building industry. He demands that these periods be included in the calculation of his seniority, which would entitle him to additional leave. His employer refuses, relying on the national collective agreement for the building industry of 21 October 1954.

The case goes before the industrial tribunal, then the court of appeal. The lower courts rule in favour of Mr. X, finding that a practice had been established in the profession. But the employer appeals to the Court of Cassation. The Court of Cassation quashes the appeal decision, on the grounds that Article 9-b of the collective agreement only allows the duration of the annual paid leave defined in Article 17 of the same agreement to be taken into account. In other words, a tolerated absence, even if repeated, does not become paid leave.

The Court's Reasoning – Analysed

The Court of Cassation relies on a strict interpretation of the collective agreement. Article 9-b provides that seniority is calculated based on actual working time, including annual paid leave. But what is meant by "annual paid leave"? Article 17 of the same agreement defines it precisely: it is legal and contractual leave of a duration determined by hours worked (for example, 1,800 hours for a worker).

The judges refuse to equate an unpaid prolonged absence with paid leave. Even if this absence is "common practice", it does not create an automatic right. For a practice to be recognised, it must be constant, general and well-known, and relate to a specific element – here, payment for the absence. However, the mere fact that immigrant workers take time off each winter does not prove that the employer agreed to pay them during this period.

This decision is important because it reaffirms the principle: practice cannot override a collective agreement. The judges thus strengthen legal certainty for employers, while encouraging employees to have their rights recognised in writing. For non-lawyers, remember this: an informal practice, even if longstanding, does not have the same value as a clear text.

What This Means for You – Practically

If you are an employer in the building industry, this decision reassures you: you are not obliged to pay for absences not provided for in the collective agreement, even if you tolerate them. But beware: if you repeatedly pay for these absences, this may create a binding practice. For example, if you pay for three months of absence each year for a worker, this could be considered an acquired benefit.

If you are an employee, know that your seniority rights do not automatically extend to unpaid absences. To secure your situation, ask your employer for a written document specifying the conditions of your absences. Concrete example: a worker in Paris who takes two months off each winter without pay cannot demand that this period be counted as working time for seniority purposes.

For real estate professionals who employ construction site staff, this case law is a human resources management tool. It allows you to set clear rules in the employment contract or internal regulations. In Boulogne-Billancourt, a property developer could thus avoid litigation by reminding in writing that prolonged absences are not paid.

Four Tips to Avoid This Type of Dispute

• Draft a precise employment contract: mention the rules for calculating seniority and refer to the applicable collective agreement. Indicate that only legal and contractual paid leave is taken into account.
• Document absences: keep an attendance register and have unpaid leave authorisations signed. This will prove that the absence was not paid leave.
• Avoid prolonged tolerance: if you accept an unpaid absence each year, state in writing that it is a one-off favour, not a right.
• Consult a specialist lawyer: before changing your company's practices, have their compliance with the collective agreement checked. Advice from a lawyer in Paris or Boulogne-Billancourt can help you secure your procedures.

Further Reading: Related Case Law and Developments

The 1978 decision is part of a consistent line of Court of Cassation rulings. For example, in a judgment of 18 January 1979 (No. 77-40.297), the Court ruled that absences due to illness are not equivalent to actual working time for calculating seniority, unless the collective agreement provides otherwise. More recently, the social chamber reiterated in 2018 that unpaid leave does not count towards seniority (Cass. soc., 21 March 2018, No. 16-23.564).

This trend shows that judges are strict on the distinction between actual working time and absences. For the future, employers must be vigilant: repeated tolerance may create a practice, but only if accompanied by payment or explicit recognition. Collective agreements remain the reference, and judges do not hesitate to apply them literally.

Summary and Next Steps

FAQ: Practical Questions

• Can an employee demand that his winter absences be counted towards his seniority? No, unless the collective agreement provides for it or the employer has paid them as paid leave.
• What should an employee do if an employer refuses to pay leave that the employee believes is due? The employee can take the matter to the industrial tribunal, but he will have to prove the existence of a practice or a written agreement.
• Does this decision apply to sectors other than building? Yes, the principle is general: only texts (collective agreement, contract) define rights, not mere practices.
• Can I provide in the contract that certain absences do not count towards seniority? Yes, as long as this does not contradict a mandatory legal or contractual provision.
• What is the time limit for legal action? In employment law, a claim for payment of paid leave is subject to a 3-year limitation period from the date the leave was due.

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