Paid leave in working days: watch out for the less favourable condition (CC 1992)

Imagine: you work in a continuous process plant near Carpentras, on rotating shifts. Your days off never fall on a Saturday or Sunday. Yet your employer grants you 25 working days of leave per year, whereas the law provides for 30 business days. Are you disadvantaged? The question, apparently technical, hides a considerable financial stake: 4 extra days of leave, or nearly a week's salary.

This dispute, decided by the Court of Cassation on 27 May 1992 (n° 91-40.423), pits employees of a plant in the Avignon region against their employer. The dispute concerns the method of calculating paid leave: working days (Monday to Friday) versus business days (all days except Sundays and public holidays). The decision recalls a fundamental rule: if the employer can choose the working day count, it is on condition that the employee does not lose out.

What exactly does this ruling say? And above all, what should you check on your own payslip if you work atypical hours? I explain everything, without jargon, with concrete examples.

The facts: a story that happens every day

In the early 1990s, a plant in the Pertuis region operates continuously, 24 hours a day. Its employees work in shifts (3x8 or 2x12) and their weekly rest is not fixed: it can fall on a Tuesday, a Thursday, or any other day. The employer, to simplify management, counts paid leave in working days: Monday to Friday. Each employee thus receives 25 working days per year (5 weeks × 5 days). However, the Labour Code provides that the legal duration of leave is 30 business days (i.e. 5 weeks × 6 days, Monday to Saturday).

Employees, supported by their union, bring a claim before the Avignon employment tribunal. They seek a back payment of 4 days of leave per year, arguing that the working day system is unfavourable to them. Why? Because, in a continuous process plant, rest days may coincide with working days, thereby reducing the effective number of leave days taken. In short: with 25 working days, they sometimes had to take a day of leave for a day when they would normally have worked, whereas with 30 business days, they would have had more leeway.

The employment tribunal rules in their favour. The employer appeals, but the Nîmes Court of Appeal confirms the judgment in 1991. The case goes up to the Court of Cassation. The employer argues that counting in working days is authorised by law, provided that the total duration of leave (5 weeks) is respected. The employees retort that the method of calculation must be at least as favourable as the legal system. Who is right?

The court's reasoning — explained

The Court of Cassation dismisses the employer's appeal and upholds the lower court's decision. Its reasoning boils down to one key sentence: “If the counting of paid leave days can be done in working days, it is on condition that, without questioning the concept of business day, the system applied is not less favourable than that resulting from the provisions of Article L. 223-2 of the Labour Code which determines the duration of leave in business days.”

Let us translate. Article L. 223-2 (now L. 3141-3) sets the right to 2.5 business days of leave per month of work, i.e. 30 business days per year. The business day is defined as all days of the week except Sunday and public holidays: therefore Monday, Tuesday, Wednesday, Thursday, Friday, Saturday. The employer may, by agreement or custom, replace this count with working days (Monday to Friday only). But this substitution must not result in a reduction of the employee's actual entitlement.

In this case, the Court of Appeal had found that, in a continuous process plant, employees actually lost days of leave because their weekly rest days (e.g. a Wednesday) were already counted as working days, which reduced the number of days available to take leave. The Court of Cassation approves this reasoning: the principle of favour requires that any derogation from the legal rule be more beneficial for the employee, or at least equivalent. Here, it was not.

This ruling is neither a reversal nor a major evolution: it confirms settled case law (see in particular Cass. soc., 28 March 1989, n° 86-41.728). But it firmly anchors the principle of favour in the calculation of paid leave, particularly for atypical working hours.

What this means for you — concretely

If you are an employee in a company that counts leave in working days, check that your situation is not less favourable than the legal system. Worked example: take an employee in Pertuis, working 3x8 shifts. His weekly rest falls on a Thursday. With 25 working days, to take a full week of holiday (Monday to Sunday), he must take 4 working days (Monday, Tuesday, Wednesday, Friday) — Thursday being his rest day, it is not counted. But Saturday, a business day in the legal system, is not counted in working days. Result: over the year, this employee loses 5 to 6 days of leave compared to the legal system, because his rest days “eat up” working days.

If you are an employer, this ruling requires you to be vigilant: before adopting a working day count, you must compare, for each employee or category, the number of leave days actually taken under both systems. If the working day system proves less favourable (e.g. for shift workers), you must either revert to the legal system or grant extra days to compensate. Subsequent case law (Cass. soc., 15 January 2003, n° 00-45.876) has specified that this comparison must be done at the level of each employee, not globally.

For unions and employee representatives, this ruling is a useful tool for negotiating company agreements on leave. It prohibits clauses that, under the guise of simplification, reduce employee rights. In practice, a clause providing for a working day count must be accompanied by a guarantee of non-reduction of rights, for example: “The number of working days of leave is set at 25, but any employee whose weekly rest falls on a working day receives an extra day per year for each rest day thus neutralised.”

Four tips to avoid this type of dispute

• Check your collective bargaining agreement or company agreement: some sectors (metallurgy, chemicals) have specific provisions on the counting of leave. Ensure they respect the principle of favour.
• Carry out an individual comparative test: for each employee with atypical hours, calculate the number of leave days actually taken under the working day system and compare it to the number of legal business days. If the difference is favourable to the employee, no problem; otherwise, rectify.
• Formalise the choice in writing: a collective agreement or, failing that, a company memo must specify the counting method and associated guarantees. In the event of a labour inspectorate check, you must be able to justify that the system is not less favourable.
• If in doubt, consult a specialist lawyer: a firm like mine, in Avignon, can help you audit your leave system and draft the necessary clauses. Better safe than sorry: an employment tribunal dispute can cost several thousand euros.

Further reading: related case law and developments

Before the 1992 ruling, the Court of Cassation had already established the principle of favour in matters of paid leave. In a ruling of 28 March 1989 (n° 86-41.728), it held that counting in working days was possible “provided that the employee is not deprived of the benefit of the full leave to which he is entitled”. The 1992 ruling merely clarifies the method of comparison: it is necessary to examine the concrete situation of each employee, and not to rely on a mathematical equivalence (25 working days = 30 business days).

Since then, several decisions have confirmed this line. For example, the Court of Cassation censured an agreement that granted 25 working days to employees working 7 days a week, without taking into account their variable rest days (Cass. soc., 15 January 2003, n° 00-45.876). The trend is clear: judges are very meticulous about respecting the principle of favour, especially in sectors with atypical hours.

For the future, the question may arise with the development of teleworking and flexible hours. How to count the leave of an employee who sometimes works on Saturday? The case law will probably have to adapt, but the principle will remain the same: the employee must not lose effective rest days compared to the legal minimum.

Checklist before taking action

Here is an FAQ to help you see more clearly:

1. My employer gives me 25 working days of leave. Is this legal? Yes, but only if this system does not disadvantage you compared to the legal 30 business days. If you work Monday to Friday, it is equivalent. If you have variable hours, compare.
2. How do I know if I am disadvantaged? Take your schedule for the year: count how many leave days you actually took, then calculate how many you would have taken under the business day system (including Saturdays). If the latter number is higher, you are disadvantaged.
3. What can I do if my employer refuses to change the system? Bring a claim before the Avignon or Carpentras employment tribunal. You can claim back pay for the days of leave not taken. Warning: the limitation period is 3 years (Article L. 3245-1 of the Labour Code).
4. Can my employer impose the working day count? No, without a collective agreement or prior custom. If nothing is provided, the legal system in business days applies by default.
5. What if I am on a fixed-day scheme? The fixed-day scheme (218 days per year) does not escape this rule. The number of rest days (RTT) must be calculated so that the employee benefits from at least 5 weeks of leave, i.e. 25 working days, but respecting the principle of favour.

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 →