Paid Leave and Public Holidays: the Rule for Employees on Working Days and Business Days

Imagine: you are an employee in a company in Beaumont-de-Lomagne, you take two weeks of leave in August, and 15 August falls on a Saturday. You wonder if this public holiday entitles you to an extra day of leave. The answer depends on the method of counting your leave. This seemingly technical question has concrete consequences on the number of rest days you can actually take.

For employers, the temptation is great to simplify by counting leave in business days (Monday to Friday) to avoid complications. But what does the law say? The Court of Cassation ruled in a judgment of 27 October 2004 (No. 02-44.149), clearly opposing the two regimes: working days (Monday to Saturday) and business days (Monday to Friday).

This decision, rendered in the champagne sector, actually concerns any employee, regardless of their profession. Whether you are a cellar worker in Moissac or a sales representative in Montauban, the counting of your paid leave and the impact of public holidays can give you or cost you rest days. Let's decipher this case law together.

The facts: a story like any other

Ms X has worked for 18 years as a cellar worker at the company Champagne Duval-Leroy. In 1998, she takes several leave periods: main leave, supplementary leave and additional leave for seniority. The cumulative duration of these leaves is set in working days and business days. 15 August 1998 falls on a Saturday. Ms X considers that this public holiday, although not worked in the company (Saturday is not a working day), must entitle her to an extra day of leave, because it is a working day (Saturday is a working day under the Labour Code).

The employer refuses, arguing that since Saturday is not worked in the company, the public holiday has no impact on the counting of leave. The dispute is brought before the industrial tribunal, then before the Court of Appeal of Reims. The employee loses at first instance and on appeal. She appeals to the Court of Cassation.

The Court of Cassation is seised of a question of principle: must a public holiday falling on a normally working day (such as Saturday) but not worked in the company be taken into account to extend paid leave when the latter is counted in working days? The stakes are high: for employees, a refusal to extend can reduce the actual number of rest days; for employers, the obligation to extend leave can increase the administrative burden.

The reasoning of the court — dissected

The Court of Cassation quashes the judgment of the Court of Appeal and rules in favour of the employee. Its reasoning is clear: a distinction must be made depending on whether the leave is counted in working days or business days.

Article L. 223-2 of the Labour Code (old, now codified in Articles L. 3141-1 et seq.) provides that paid leave is counted in working days, unless otherwise provided by collective agreement. A working day is a day that can be worked, i.e. from Monday to Saturday inclusive, excluding Sundays and public holidays. When a public holiday falls on a working day, even if that day is not worked in the company (for example, Saturday in a company that only works Monday to Friday), that public holiday must not be counted as a leave day. Consequently, the leave must be extended by one day to compensate for the loss of that rest day.

On the other hand, if the company has chosen to count leave in business days (Monday to Friday), a public holiday falling on a non-business day (for example, Saturday) has no impact: since Saturday is not a business day, it does not count in the leave count, and the public holiday adds nothing.

The Court recalls that the notion of working day is a legal notion, which cannot be overridden by a company practice. Thus, even if the company does not work on Saturday, Saturday remains a working day. This decision is consistent with previous case law (Cass. soc., 7 May 1996, No. 93-42.134) and is now well established.

What this changes for you — concretely

For employees: if your leave is counted in working days (this is the default in most collective agreements), each public holiday falling on a Monday, Tuesday, Wednesday, Thursday, Friday or Saturday entitles you to an extra day of leave, even if you do not normally work that day. For example, if you take two weeks of leave in May and 1 May and 8 May fall on a Wednesday and Thursday, you will be entitled to two extra days of leave. Note: Sunday is not a working day, so a public holiday falling on a Sunday does not entitle you to an extension.

For employers: you must check the method of counting your leave. If you use working days (which is the legal rule), you must extend your employees' leave whenever a public holiday falls on a working day, even if that day is normally not worked in the company. If you use business days, you are free from this obligation, but you must ensure that your collective agreement or a company agreement allows it.

Numerical example in Moissac: an employee of a small company in Moissac takes 18 working days of leave (i.e. 3 weeks). During this period, 14 July falls on a Saturday (a working day, but not worked in the company). According to the rule, she must benefit from an extra day of leave, bringing her leave to 19 working days. If the employer refuses, she can claim back pay or a compensatory rest day.

Four tips to avoid this type of dispute

• Check your collective agreement: it may provide for counting in business days or a specific rule for public holidays. If it is silent, counting in working days applies by default.
• For employers, opt for a company agreement: if you wish to count leave in business days to simplify management, conclude a collective agreement or a fixed-term contract. This will avoid systematic extensions.
• For employees, keep a record of your leave: keep your written leave requests and the employer's responses. In case of a dispute, these documents will prove the counting method used.
• Consult a lawyer if in doubt: a dispute over a single day may seem minor, but it can lead to financial consequences (back pay, damages) and legal costs. Preventive consultation is often cheaper than a trial.

Further details: related case law and developments

This 2004 decision is part of a consistent line of the Court of Cassation. As early as 1996, in a judgment of 7 May (No. 93-42.134), the Court held that public holidays falling on a working day must be recovered, even if the company does not work on that day. More recently, the Social Chamber confirmed this position in a judgment of 9 June 2010 (No. 09-40.039), specifying that the rule also applies to public holidays that are not worked in the company (example: Whit Monday not worked).

The trend of the courts is therefore protective of employees: the notion of working day is strictly interpreted, and the employer cannot disregard it by unilateral practice. However, case law accepts that the social partners may derogate from this rule by collective agreement, provided they do not reduce employees' rights below the legal minimum.

For the future, we can expect the courts to continue to clearly distinguish between the two regimes, and employers to be encouraged to formalise their practices in writing. The digitalisation of leave schedules may also reduce disputes, but it will never replace good information for employees.

Frequently asked questions

My employer counts my leave in business days, is this legal? Yes, if your collective agreement or a company agreement provides for it. Otherwise, counting in working days is the legal rule. You can challenge it if the employer applies business days without an agreement.

Does a public holiday falling on a Sunday entitle me to an extension? No, because Sunday is not a working day. Only public holidays falling from Monday to Saturday (inclusive) may give rise to an extension, and only if your leave is counted in working days.

What if my employer refuses to extend my leave? Send him a registered letter with acknowledgement of receipt reminding him of the legal rule and case law. If he persists, take the matter to the industrial tribunal. You can claim damages for the harm suffered.

Can I schedule my leave to maximise public holidays? Yes, if you take your leave during a period with several public holidays (e.g., May or August), you can benefit from several extra days if the count is in working days. This is a legal strategy.

Does this rule apply to part-time employees? Yes, the rule is the same. Public holidays are treated identically, regardless of working time. However, be aware of specific contractual arrangements.

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 →