Paid Leave and Illness: The Right to Carry Over Even in Case of Relapse of an Industrial Accident

Imagine: Jean, an employee of a logistics company in Lunel, suffers an industrial accident in January 2005. After several months off, he returns to work in March 2006, but a relapse occurs in July of the same year. Result: are his paid leave acquired for the 2005-2006 period, which he could not take due to his absence, lost? This question, which seems technical, has very concrete consequences on employees' right to rest. Many employers think that leave not taken in the year is lost, but case law has nuanced this rule. With this ruling of 16 February 2012, the Court of Cassation has decided: paid leave not taken due to illness or industrial accident must be carried over, and this carry-over also applies in case of relapse.

But what exactly does this change for you, employer or employee? This article explains everything in simple terms, with concrete examples. We will first look at the facts of the case, then the judges' reasoning, and finally the practical implications to avoid disputes. Whether you are in Agde, Montpellier or elsewhere, these rules apply to all private sector employees.

In short, this ruling establishes a right to carry over paid leave in case of absence due to illness or accident, even if the absence is prolonged or repeated. This is an essential protection for employees, but also an obligation not to neglect for employers, on pain of having to pay compensation in lieu.

The facts: a story like those that happen every day

The case concerns an employee, whom we will call Mr Dupont, employed in a transport company. In January 2005, he suffers an industrial accident (an accident occurring through or in the course of work). He is off work until March 2006, when he returns to his post. At that time, he wishes to take all of his 25 working days of paid leave acquired for the 2005-2006 year (the reference period generally running from 1 June to 31 May). But his employer refuses, on the grounds that this leave must be taken before 31 May 2006, and that the employee should have taken it before his accident or upon his return.

Mr Dupont insists: he could not take his leave in March 2006 because the employer imposed a work schedule that did not allow it. Eventually, he only takes 5 days of leave, and the rest is lost. In July 2006, he suffers a relapse of his industrial accident (a new aggravation of his state of health related to the initial accident), which leads to a new period off work. Upon his return, he claims the carry-over of his untaken leave, but the employer refuses again.

The employee then takes the matter to the employment tribunal (the court competent for individual labour disputes) to obtain compensation in lieu of paid leave (a sum of money corresponding to the untaken leave). The case goes up to the Court of Cassation, the highest French judicial court. The legal process lasted several years, illustrating the complexity of the subject.

The reasoning of the court — explained

The Court of Cassation, in its ruling of 16 February 2012, ruled in favour of the employee. Its reasoning is based on Article L. 3141-3 of the Labour Code (which establishes the right to paid leave: 2.5 working days per month of actual work) and Article L. 3141-5 (which assimilates periods of occupational disease or industrial accident to actual work for the acquisition of leave). But above all, it interprets European law: Directive 2003/88/EC on working time requires that every employee benefit from at least 4 weeks of paid annual leave, and this right cannot be lost in case of illness.

In other words, the Court of Cassation affirms that paid leave acquired during a period of absence due to illness or industrial accident cannot be lost. If the employee could not take it because of his absence, it must be carried over to a later period. And this carry-over applies even if the employee has already benefited from a carry-over after his first absence, then suffers a relapse: the right to carry-over is renewed.

In this case, the employee had acquired 25 days of leave for the 2005-2006 period. He only took 5 due to the schedule imposed by the employer. The relapse in July 2006 prevented him from taking the remaining 20 days. The Court considers that the employer cannot invoke the rule of loss of untaken leave within the year, because the impossibility of taking the leave results from the industrial accident and the relapse, and not from a choice of the employee.

What few people know is that this solution is part of a broader evolution of French case law, aligned with European Union law. Previously, judges were stricter: untaken leave was lost if the employee did not request it before 31 May. But since a 2009 ruling (Cass. soc., 24 February 2009, No. 07-44.235), the Court of Cassation initiated a protective turn, confirmed by this 2012 ruling.

What this changes for you — concretely

If you are an employee: you have the right to carry over your paid leave if you are on sick leave, industrial accident or occupational disease. This carry-over applies even if you have already carried over leave and you suffer a relapse. You must inform your employer of your wish to take this carried-over leave upon your return. If the employer refuses, you can claim compensation in lieu (equal to the salary you would have received during the leave). For example, in Agde, an employee in the construction industry who was off work due to an industrial accident from January to June 2023 is entitled to 15 days of carried-over leave. If he cannot take them before the end of May 2024, he can demand compensation.

If you are an employer: you must ensure that your employees can take their carried-over leave. You cannot invoke the rule of annual loss of leave if the absence is due to illness or accident. Warning: failure to comply with this obligation can cost you dearly. Compensation in lieu is due, and in addition, the employee may claim damages for harm suffered (for example, if the lack of rest harmed his health). undefined, I have encountered cases where employers had to pay several thousand euros for leave not granted.

If you are a property professional (syndic, property manager): although this ruling concerns labour law, its principles can influence other areas, such as the right to rest of building caretakers. But the essential point is elsewhere: if you employ staff, you must respect these rules.

Four tips to avoid this type of dispute

• Keep an accurate record of absences and leave: for each employee, note the dates of absence, the nature of the absence (illness, industrial accident, etc.), and the leave taken. This allows tracking of necessary carry-overs.
• Inform the employee of his rights upon his return: send a letter or email reminding him that he can request the carry-over of his untaken leave due to his absence. This avoids misunderstandings.
• Plan the carried-over leave as soon as the employee returns: with the employee's agreement, set a period for taking leave in the months following the return. If several employees are concerned, organise a rotation.
• Consult a specialised lawyer in case of doubt: if you are faced with a complex situation (multiple relapses, old leave), seek advice before refusing a carry-over. A quick consultation can avoid a costly lawsuit.

Further reading: related case law and developments

This 2012 ruling is part of a protective line. Already in 2009, the Court of Cassation had ruled that untaken leave due to illness must be carried over (Cass. soc., 24 February 2009, No. 07-44.235). Then, in 2013, the Court of Justice of the European Union (CJEU) strengthened this position by affirming that the right to paid annual leave cannot be lost at the end of the reference period if the employee was ill (judgment of 22 November 2011, case KHS). The trend is therefore clear: French and European judges prioritise the effective right to rest.

However, caution: the carry-over is not unlimited. The CJEU accepts that Member States may set a carry-over period, for example 15 months after the end of the acquisition period. In France, no text sets this period, but case law considers that the carry-over must be requested within a reasonable time. If the employee waits several years, he may lose his right. That is why it is crucial to act quickly.

For the future, it is possible that the French legislator will clarify these rules, perhaps by setting a maximum carry-over period. In the meantime, case law continues to apply on a case-by-case basis.

Checklist before acting

FAQ: questions you may have

• Can I lose my paid leave if I am ill for several months? No, it is carried over. You must take it after your return. If your employer refuses, you are entitled to compensation in lieu.
• What should I do if my employer refuses the carry-over? Send him a registered letter with acknowledgement of receipt reminding him of the law and case law. Keep the evidence. If the refusal persists, take the matter to the employment tribunal.
• What is the time limit to request the carry-over? There is no legal time limit, but it is advisable to do so upon your return, at the latest within 15 months following the end of the acquisition period (following European logic).
• Is compensation in lieu taxable? Yes, it is subject to income tax and social security contributions, like salary.
• Does this rule apply to industrial accidents that occurred before 2009? Yes, the 2012 case law applies to all non-prescribed disputes. If the case is ongoing, you can invoke this ruling.

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