Holiday Pay and Illness: The Court of Cassation Refuses Carry-Over in 1975

Imagine: you are a sales representative in Boulogne-Billancourt, you book three weeks' holiday in July, and on the second day, tonsillitis keeps you bedridden. You spend your holiday between the bedroom and the doctor. On your return, you ask your employer to make up the sick days, even if it means taking them unpaid. Categorical refusal. Who is right? The answer, given by the Court of Cassation in 1975, is final: the employer does not have to grant a new holiday, even unpaid. A decision that, nearly fifty years later, continues to surprise.

This case, between Mr. Baujard and his employer, raises a simple question: should illness occurring during the annual holiday entitle the employee to carry over or recover the sick days? The Court of Cassation answers no, relying on Article 54-f of Book II of the Labour Code (predecessor of the current Articles L3141-1 et seq.). For the Court, the employer who grants the holiday required by law fulfills their obligation for the reference year, and health incidents do not alter this obligation.

So, is this decision still relevant? Not entirely: case law has evolved since, particularly with the influence of European law and directives on working time. But the 1975 ruling remains an important milestone, illuminating current debates on the carry-over of holidays in case of illness. Let's break it down.

The Facts: A Story That Happens Every Day

Mr. Baujard is an employee. His employer grants him an annual paid holiday from 26 July to 3 August 1972. Unfortunately, from the first day, he falls ill and is bedridden until 3 August. He thus did not enjoy his holiday.

Upon returning to work, Mr. Baujard requests his employer to allow him to actually take the holiday days lost due to illness, without claiming additional compensation. In short, he asks for a carry-over to a later date, even unpaid. The employer refuses, considering that they have fulfilled their obligation by granting the holiday on the scheduled date.

The employee then brings the matter before the employment tribunal (the competent jurisdiction for individual labour disputes). He succeeds at first instance: the judges grant him the right to take the sick days as additional unpaid holiday. But the employer appeals. The Court of Appeal (second instance jurisdiction) overturns the judgment: it rules in favour of the employer, holding that illness occurring during the holiday does not give rise to a new holiday. Mr. Baujard then appeals to the Court of Cassation.

Before the Court of Cassation (the highest French court, which reviews the application of law), the debate focuses on the interpretation of Article 54-f of Book II of the Labour Code, then in force. This provision requires the employer to grant an annual holiday of a minimum duration. Mr. Baujard argues that this holiday must be effective, meaning the employee must actually be able to rest. However, illness prevented that. The employer, for their part, argues that their obligation is limited to granting the holiday at the agreed period, and health contingencies are beyond their control.

The Court's Reasoning — Explained

The Court of Cassation, in a very brief judgment, dismisses Mr. Baujard's appeal. It clearly states: "IT FOLLOWS FROM THE TERMS OF ARTICLE 54-F OF BOOK II OF THE LABOUR CODE THAT THE EMPLOYER, WHO HAS GRANTED THE HOLIDAY PROVIDED FOR BY THIS TEXT, HAS FULFILLED THEIR OBLIGATIONS FOR THE REFERENCE YEAR, WITHOUT THE VARIOUS INCIDENTS, SUCH AS THE EMPLOYEE'S ILLNESS, THAT OCCUR DURING THE HOLIDAY BEING ABLE SUBSEQUENTLY TO MODIFY THE EXTENT OF THEIR LEGAL OBLIGATION."

In other words: the employer has an obligation of means (to grant the holiday), not of result (to guarantee that the employee enjoys it). Once the holiday is granted and paid, the employer is discharged. Illness is an external event, a risk borne by the employee, not the employer. The Court adds that the employee is not entitled to obtain a new holiday, even unpaid, since the full annual holiday to which they were entitled has been granted with payment of the corresponding allowance.

This reasoning is based on a strict interpretation of the employer's legal obligation: the employer must simply release the employee from work for a certain period and pay them during that period. If the employee falls ill, the employer does not have to "compensate" for this loss of rest, because the illness is not their fault. The Court also dismisses the argument based on a 1936 decree, which prohibited deducting sick days from the duration of paid holiday. For the judges, this decree only concerns the calculation of holiday duration, not the right to carry over.

This decision was criticised by some legal scholars, as it seems contrary to the purpose of paid holidays: to allow the employee to rest. Today, European law and the case law of the Court of Justice of the European Union (CJEU) require that paid holidays can be carried over in case of long-term illness. But in 1975, the Court of Cassation remained faithful to a literal reading of the text.

What This Means for You — Practically

For employees: if you fall ill during your holiday, you cannot demand a carry-over of the sick days, unless the illness is long-term (several weeks) or you are covered by a more favourable collective agreement. In practice, many employers agree to an amicable arrangement, but legally, they are not obliged to do so since this ruling.

For employers: you have the right to refuse a carry-over if the illness is brief (a few days). However, be aware of recent developments: since 2009, the Court of Cassation has softened its position for illnesses occurring before the start of holiday (the employee can then carry over their holiday). For illness during the holiday, the 1975 rule remains the reference, but lower courts (employment tribunal, Court of Appeal) may sometimes set it aside if the employee proves harm (e.g., total inability to rest).

Concrete example in Montreuil: an office employee is on holiday from 1 to 15 August. They catch gastroenteritis on 3 August and are off sick for 5 days. They ask to recover these days. The employer can refuse. Conversely, if the employee is hospitalised for the entire holiday, they could argue that rest was not effective. But the 1975 case law is unfavourable to them.

If you are in this situation, you should check your collective agreement: some provide for the carry-over of holidays in case of illness. Failing that, you can negotiate with your employer, but without certainty of success.

Four Tips to Avoid This Type of Dispute

• Check your collective agreement: some professional sectors (retail, metallurgy, etc.) provide for provisions more favourable than the Labour Code regarding the carry-over of holidays. Consult your HR department or trade union.
• Report the illness from the first day: if you fall ill during your holiday, inform your employer and provide a sick note. This will document the situation, even if the right to carry over is not guaranteed.
• Prefer a negotiated solution: rather than going to the employment tribunal, propose to your employer to take unpaid days or make up the sick days later. An amicable agreement is cheaper and avoids tension.
• Keep all evidence: sick notes, medical certificates, correspondence with the employer. In case of litigation, these documents are essential to prove the reality of the illness.

Further Reading: Related Case Law and Developments

The 1975 ruling remained the principle for nearly 30 years. But in 2009, the Court of Cassation made a partial change: it ruled that if the illness occurs before the start of the holiday, the employee can carry over their holiday to a later date (Cass. soc., 14 October 2009, No. 08-41.161). However, for illness during the holiday, the 1975 solution still applies, although some recent decisions show some flexibility.

Furthermore, EU law, via Directive 2003/88/EC on working time, requires that annual holidays can be carried over in case of long-term illness. The CJEU has issued several rulings to this effect (notably the Schultz-Hoff case, 2009). In France, this case law led to a legislative amendment: since 2016, Article L3141-19-1 of the Labour Code provides for the carry-over of holidays in case of sick leave of at least one year. But this does not concern brief illnesses during the holiday.

Thus, the 1975 decision remains relevant for short-term absences, but it is now framed by legal and contractual exceptions. The trend of the courts is towards greater protection of the employee, but the basic rule remains: no automatic carry-over for illness during the holiday.

In Practice: What to Do

FAQ

Q: Can I recover my holiday days if I fall ill during my holiday?
A: In principle, no, unless your collective agreement provides for it or you are on long-term sick leave (several months). The 1975 case law denies it, but you can negotiate with your employer.

Q: What if my employer refuses the carry-over?
A: First, check your collective agreement. If it is silent, you can take the matter to the employment tribunal, but your chances of success are low for a brief illness. Better to try an amicable agreement.

Q: And if I am ill before the start of my holiday?
A: In that case, the situation is different: since 2009, you have the right to carry over your holiday, provided you inform your employer and provide a sick note.

Q: Can my employer force me to take my holiday during a sick leave?
A: No, if you are on sick leave before the holiday, the employer cannot force you to take your holiday during that period. You must carry it over.

Q: What are the time limits for action?
A: You have 5 years to claim a carry-over of holidays (general limitation period). But in practice, act quickly, within months of the incident.

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