Additional Leave for Split Holidays: a Right That Is Not Lost on a Form

You are an employer in Isle or an employee in Saint-Junien, and every year the same question arises: when I take my holiday in several parts, am I entitled to additional days? A recent decision of the Court of Cassation has just made things clear. And if you thought that a simple form was enough to waive these days, think again.

Imagine: Mr X, a worker in a Limousin transport company, takes his summer holiday in two parts. His employer makes him sign a standard form, with a small pre-ticked box indicating a waiver of split holiday days. Mr X pays no attention. But at the end of the year, he claims his two additional days. The employer relies on the signed form. Who is right?

The Court of Cassation ruled on 19 June 2024: the right to additional leave arises from the mere splitting of the holiday, and a printed mention on a form cannot prevent it. Explanations, because these days are not a favour, but a right.

The facts: a story like many that happen every day

Mr X is a monthly-paid worker in a road transport company, subject to the national collective agreement for road transport and auxiliary transport activities of 21 December 1950. With several years of seniority, each year he takes his main holiday (24 working days, i.e. 4 weeks) in two parts: one part in summer, the other in winter, for family reasons.

Under Article 7 ter of the agreement of 16 June 1961 relating to workers, Annex I to this collective agreement, any employee who splits his main holiday into more than two periods (or who takes a holiday period of less than 12 working days) is entitled to additional leave days: one working day if the split covers at least 5 days, two days if at least 6 days are taken outside the legal period (1 May - 31 October).

However, in the company, a holiday request form includes a pre-printed statement: 'I waive any additional leave days for splitting'. Mr X signs this form each year without crossing out the statement. When he claims his additional days, the employer relies on his signature. Mr X brings the matter before the Limoges employment tribunal, which finds in his favour. The employer appeals, then brings an appeal in cassation.

The Court of Cassation dismisses the appeal. It recalls that the right to additional leave arises from the mere fact of splitting, independently of the parties' will. A pre-printed statement on a form, even if not crossed out, does not constitute a clear and unequivocal waiver. The employer cannot therefore deprive the employee of this right.

The reasoning of the court — dissected

The Court of Cassation relies on two texts: Article 7 ter of the agreement of 16 June 1961 (road transport collective agreement) and Article L. 3133-6 of the Labour Code (compensation for work on a public holiday). Why this connection? Because both texts establish rights of public policy, which cannot be waived in advance.

The reasoning is clear: the right to additional leave is attached to the splitting itself. It does not matter that the employee signed a form, it does not matter that he did not cross out the statement. Waiver of a right arising from a legal or contractual provision must be express and unequivocal. However, a pre-printed clause buried in a standard form does not meet these criteria. In short, the employee does not have to take steps to preserve his right; it is for the employer to prove that the employee waived it knowingly.

The decision confirms consistent case law: since a 2016 judgment, the Court of Cassation considers that split holiday days are acquired automatically. The originality of this case lies in the rejection of the form argument. The employer argued that the signature constituted acceptance. The judges retort that the employee does not have to cross out clauses; it is for the employer to provide a clear form, without a pre-written waiver statement.

Note that Article L. 3133-6 is cited for the public holiday indemnity, but the Court uses it by analogy: as for 1 May, the right is automatic. Thus, the decision strengthens the protection of the employee against company practices that attempt to circumvent collective rights through individual forms.

What this changes for you — concretely

For employees: if you split your holiday (for example, 3 weeks in August and 1 week at Christmas), you are entitled to one or two additional days depending on the duration of the second period. Your employer cannot refuse them on the pretext that you signed a document. If this is the case, you can claim these days, or their compensation if not taken, within 3 years following the end of the reference year.

Concrete example: an employee in Saint-Junien takes 18 days in July and 6 days in December. He is entitled to 2 additional days. If he does not take them, he can obtain compensation equal to 2 days' pay. On a gross monthly salary of €1,800, this represents approximately €165.

For employers: check your holiday request forms. Any pre-printed waiver statement is now unenforceable. You must inform your employees of their rights clearly. In the event of a dispute, you risk having to pay the additional days with the associated holiday pay, possibly increased by damages.

For real estate professionals: although the decision concerns the transport sector, the principle (automaticity of rights arising from splitting) applies to all collective agreements that provide for additional days. For example, in the real estate collective agreement (IDCC 1527), Article 27 also provides for split holiday days. Real estate agents and property managers must therefore be vigilant.

Finally, for trade unions and employee representatives: this is a legal victory. You can rely on this decision to negotiate more favourable company agreements or to challenge abusive practices.

Four tips to avoid this type of dispute

• For employees: keep your holiday requests and the employer's responses. If you split, note the dates and durations. In case of refusal, send a registered letter to claim the additional days. Keep a written record.
• For employers: review your standard forms. Remove any pre-printed waiver clause. Instead, add an explicit checkbox: 'I expressly waive my additional leave days for splitting', and only if the employee voluntarily ticks it. Better still: systematically inform in writing of the number of additional days acquired after each split.
• For both parties: know your collective agreement. Not all agreements provide the same rules. Check whether yours grants split holiday days, and if so, under what conditions. The employer must keep the text of the agreement available.
• For real estate professionals: train your HR teams. An error on a payslip can lead to a back-pay claim over 3 years, with interest. Anticipate inspections by URSSAF or the labour inspectorate.

Further reading: related case law and developments

This decision is part of a protective line. As early as 2016, the Court of Cassation (Soc., 19 October 2016, No. 15-20.301) held that split holiday days are acquired as of right, without any prior request from the employee. In 2020 (Soc., 11 March 2020, No. 18-23.822), it specified that the employer must inform the employee of his rights, failing which he incurs liability.

The present decision goes further: it prohibits any anticipatory waiver clause, even if unchallenged. This is an implicit reversal of certain decisions of courts of appeal that validated clear waivers. Henceforth, the mere signature of a form is no longer sufficient.

In the future, we can expect the Court to extend this reasoning to other rights (such as compensatory rest days, reduced working time, etc.). Employers must therefore be extremely careful in drafting their internal documents. The trend is clear: the judge favours the protection of the employee against standardised practices.

Summary and next steps

FAQ:

Q: Can I waive my split holiday days in exchange for a bonus?
R: Yes, but only after the right has arisen, by a written and express agreement. An anticipatory waiver in a form is void.

Q: What if my employer refuses to grant me these days?
R: Send him a formal notice by registered letter. In case of refusal, bring the matter before the employment tribunal (time limit: 3 years from the date the right became enforceable). You can claim the equivalent compensation.

Q: Are split holiday days taxable?
R: Yes, like any salary. They are subject to social security contributions and income tax.

Q: Can the employer impose splitting to avoid paying these days?
R: No, splitting must be at the initiative of the employee, unless a collective agreement provides otherwise. If the employer imposes splitting, he must still grant the additional days.

Q: Does this decision apply to managers?
R: Yes, if the applicable collective agreement provides for it. Check your status.

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 →