Paid Holiday and Public Holidays: What the Cour de cassation Said (1991)

Imagine: you are a sales representative in Marseille, you take two weeks' holiday in August. 15 August falls on a Saturday, a non-working day in your company. Upon returning, you claim an extra day of holiday because 15 August is a public holiday. Your employer refuses. Who is right? This seemingly trivial question was decided by the Cour de cassation in a judgment of 13 February 1991. And the answer is not what one might think.

For landlord owners, tenants or property professionals, this decision may seem far removed from their concerns. Yet it applies to all employment contracts, including those of building caretakers, domestic employees or estate agents. So how do you know if a public holiday falling on a Saturday or Sunday entitles you to an extra day of holiday? It all depends on the method of calculating paid holiday: working days or business days.

In this article, we dissect the Cour de cassation judgment, explain its practical implications and give you advice to avoid disputes. Whether you are an employer or an employee, you will leave with legal certainty.

The facts: a story that happens every day

In the early 1980s, several employees of a social security organisation based in Marseille (one might imagine the CPAM des Bouches-du-Rhône) asked to benefit from an exceptional day of holiday to compensate for public holidays falling on a working day normally not worked in their company. Specifically, when 1 May or 14 July fell on a Saturday, they considered they were entitled to an extra rest day.

Their employer opposed the applicable collective agreement, which provided that this exceptional holiday must be taken on the nearest working day before or after the statutory holiday. However, the employees concerned were on paid holiday on those days. They could not therefore benefit from this compensatory day. The central question: can an employee on holiday cumulate his holiday and a non-working public holiday?

The case was brought before the employment tribunal, then the court of appeal, and finally the Cour de cassation. The employees invoked Article L. 223-2 of the Labour Code (now L. 3133-3), which provides that when a public holiday falls on a working day, the holiday is extended by one day. But the employer retorted that this text only applies if the holiday calculation is made in working days, not business days. The Cour de cassation would decide.

The reasoning of the court — dissected

The High Court first recalled the principle: 'If when the calculation of paid holiday is carried out in working days in accordance with Article L. 223-2 of the Labour Code, or according to methods that do not undermine the concept of working day, the holiday must be extended by one day when a public holiday falls on a working day, even if it is not worked in the company.' In other words, if you count your holiday in working days (Monday to Saturday, excluding Sunday), a public holiday falling on a working day (e.g. a Thursday) must be added to your holiday.

But the Court immediately added: 'when holidays are calculated in business days, a public holiday falling on a non-working day in the company has no effect on the calculation of the holiday.' In clear terms, if your holiday is counted in business days (Monday to Friday, for example), a public holiday falling on a Saturday (a non-working day) gives no entitlement. Why? Because the public holiday falls on a day when you would not have worked anyway. The logic is implacable: the exceptional holiday provided by the collective agreement cannot benefit employees who are already on holiday on those days.

What few people know is that this distinction is crucial. Many companies calculate holiday in business days (25 business days per year, i.e. 5 weeks). In this case, if a public holiday falls on a Saturday, the employee is not entitled to an extra day. On the other hand, if the calculation is in working days (30 working days), a public holiday falling on a Saturday (which is a working day) gives entitlement to an extra day of holiday. The Cour de cassation thus confirms a consistent line of authority, without reversal.

undefined, I have come across cases where disgruntled employees claimed extra days for bridge days or holidays falling on weekends. The answer is always the same: it all depends on the method of calculating holiday. A prudent employer must therefore specify in the employment contract or collective agreement whether holidays are counted in working days or business days.

What this means for you — practically

For employers: if you calculate holiday in business days (which is most common in modern companies), you do not have to grant an extra day for a public holiday falling on a Saturday or Sunday. On the other hand, if you use working days (still common in some collective agreements, particularly in construction or retail), you must extend the holiday by one day for each statutory holiday falling on a working day, even if not worked. Check your collective agreement!

For employees: if you take holiday and a public holiday falls during that period, look at how your holiday is calculated. If it is in business days and the public holiday falls on a Saturday, no luck. But if it falls on a business day (Monday to Friday), you are entitled to an extra day of holiday, regardless of the calculation method. Concrete example: in Marseille, an employee takes two weeks' holiday from Monday 12 to Friday 23 August. 15 August (a public holiday) falls on a Thursday: he is entitled to an extra day of holiday (i.e. return on Monday 26 August). But if 15 August falls on a Saturday, he gains nothing.

For property professionals: if you employ a building caretaker or concierge in Gemenos, his contract must specify the method of calculating holiday. A dispute on this point can lead to back pay or days of rest not granted. Better to clarify in advance.

Four tips to avoid this type of dispute

• 1. Specify the method of calculating holiday in the employment contract: clearly state whether holiday is counted in working days (30 days) or business days (25 days). This avoids any ambiguity. Example: 'Paid holiday is calculated in business days, from Monday to Friday.'
• 2. Check your collective agreement: some agreements (particularly in metallurgy, construction, retail) require calculation in working days. In this case, a public holiday falling on a Saturday gives entitlement to an extra day of holiday. Do not forget this, otherwise you risk litigation.
• 3. Keep a calendar of public holidays: each year, identify public holidays that fall on a working or business day. Anticipate holiday requests to avoid nasty surprises. For example, if 1 May falls on a Wednesday, employees taking the whole week will be entitled to an extra day of holiday (unless the contract provides that 1 May is already a paid non-working day).
• 4. If in doubt, consult a solicitor: the rules are complex and vary by sector. A mistake can be costly (back pay, damages). Maître Zakine can help you secure your contracts and practices.

Further reading: related case law and developments

This 1991 judgment is part of a consistent line. The Cour de cassation had already held in 1988 (decision no. 86-44.223) that a public holiday only gives an extra day if it falls on a working day under a working days calculation. More recently, the social chamber recalled in a decision of 8 July 2020 (no. 19-13.750) that a public holiday not worked in the company does not give an extra day of holiday if it falls on a non-working day, even if the employee is on holiday that day. The trend is therefore stable: the Cour de cassation protects the accounting logic of the calculation method. For the future, no reversal seems in sight. Employers can therefore rely on this case law to refuse abusive requests, provided they have correctly defined the calculation method.

What you absolutely must remember

1. Method of calculating holiday: working days or business days? This is the key. Working days = Monday to Saturday (30 days); business days = Monday to Friday (25 days). If you do not know, check your contract or collective agreement.

2. Public holiday falling on a non-working day (Saturday in business days): no extra day. The employee loses nothing, but gains nothing either.

3. Public holiday falling on a working day (Wednesday, Thursday): in all cases, the holiday is extended by one day, whether the calculation is in working days or business days. Example: holiday from Monday to Friday, Wednesday is a public holiday: the employee returns the following Monday (instead of Saturday if working days, or Monday if business days).

4. Beware of company protocols or collective agreements: they may provide more favourable rules (e.g. an exceptional day of holiday for any statutory holiday, regardless of the day). In that case, the agreement prevails.

5. In case of dispute, the employee must prove the loss: if he considers he has lost a day of holiday, he must show that the employer has misapplied the rules. A solicitor can help him gather evidence (contract, pay slips, calendar).

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 →