Notice of Leave and Time Savings Account: Employer Cannot Impose Their Use Without Employee Consent

In Betton, as elsewhere, the management of leave can quickly become a headache. Imagine: you are an employee, you have accumulated rest days in your time savings account (CET). Your employer, faced with a downturn in activity, unilaterally decides to impose on you to take these days during a period of partial unemployment. You wonder: does he have the right? The Court of Cassation, in a judgment of 18 March 2015, answered clearly: no. This decision, concerning an employee from Vitré, has concrete implications for all players in the world of work.

Who has never had a dispute with their employer about taking their leave? The question is all the more sensitive when it comes to compensatory replacement rest days (RCR) – those days that compensate for unpaid overtime. Their legal regime differs from that of ordinary paid leave. The judgment of the Court of Cassation of 18 March 2015 (No. 13-19-206) specifies that the employer cannot, without the employee's agreement, impose the taking of these days when they have been paid into a time savings account.

This decision, handed down by the social chamber of the Court of Cassation, is a victory for employees. It reminds us that the time savings account is a tool for managing rest periods that belongs to the employee, and that the employer cannot unilaterally draw from it. But beware, there are nuances depending on the nature of the days concerned. Let's decipher together this case which took place within the jurisdiction of the Rennes Court of Appeal.

The Facts: A Story Like Many Others

Mr. X, an employee of a company in Vitré, had accumulated compensatory replacement rest days (RCR) in his time savings account (CET), in accordance with a company agreement. In December 2010, his employer, faced with a downturn in activity, placed the company on short-time working. To limit the financial impact, he imposed on Mr. X to take his RCR days during this period, without obtaining his prior agreement.

Mr. X challenged this decision. According to him, the employer could not force him to draw on his CET without his consent. He brought the matter before the Rennes industrial tribunal, which ruled in his favour. The judges considered that the employer had violated the applicable contractual provisions by imposing the taking of these days without the employee's consent. The company then appealed, but the Rennes Court of Appeal upheld the judgment.

The employer appealed to the Court of Cassation. He argued that, under Articles L. 3121-24 and D. 3121-10 of the Labour Code, the employer may impose the taking of the compulsory rest counterpart (COR) in the absence of a request from the employee, and that the same applies to RCRs. The Court of Cassation rejected this argument. It held that RCRs, once allocated to the CET, are not subject to the same regime as the COR. The employer cannot therefore impose them unilaterally.

The Reasoning of the Court — Analysed

The Court of Cassation's decision is based on a fundamental distinction between two types of rest: the compulsory rest counterpart (COR) and the compensatory replacement rest (RCR). The COR is owed to the employee who exceeds the annual overtime quota. The employer may, in the absence of a request from the employee, impose its taking within one year (Articles L. 3121-24 and D. 3121-10). In contrast, the RCR is rest that replaces payment for overtime, and may be allocated to a CET with the employee's agreement.

The Court specifies that the legal provisions relating to the COR are not applicable to RCRs placed in a CET. Why? Because the CET is a contractual or conventional device, the rules of which are set by the collective agreement or the employment contract. The employer cannot unilaterally modify the conditions of use of the saved days. He must respect the employee's wishes, who freely chose to place his RCRs in the CET.

In this case, the industrial tribunal had found that the employer had used the RCR days placed in the CET without the employee's consent. The Court of Cassation validates this reasoning: by acting in this way, the employer violated the contractual provisions that governed the CET. It therefore dismisses the appeal and orders the employer to pay costs. This judgment confirms a protective line of case law regarding the employee's rights over his time savings.

This reasoning is part of a logic of protecting the employee. The Court reminds that the time savings belong to the employee, and the employer can only dispose of them within the limits set by the collective agreement or the contract. A question arises: does this solution apply to all types of days placed in a CET? The answer is nuanced, as we shall see.

What This Changes for You — Concretely

For employees: This decision strengthens your control over your time savings. If you have placed RCR days in a CET, your employer cannot impose their taking without your consent, even in the event of short-time working. Concretely, if your employer asks you to draw on your CET to avoid a salary reduction, you can refuse. Example: in Vitré, an employee with 10 RCR days in his CET can refuse to take them during a period of short-time working, unless the collective agreement provides otherwise.

For employers: You must be careful. If you wish to impose the taking of rest days, ensure that they are COR days and not RCRs placed in a CET. In case of doubt, consult the collective agreement or the employment contract. A mistake can be costly: reinstatement of days, damages, and legal costs. In Betton, an SME could thus avoid litigation by negotiating with its employees rather than unilaterally imposing the taking of CET days.

For real estate professionals: This decision may have an indirect impact. For example, an employed estate agent who accumulates RCRs in his CET may see his employer try to impose leave during a slow period. The judgment reminds that this is not possible without agreement. A property developer employing staff must therefore be vigilant in managing CETs.

The amounts at stake can be significant. An employee who loses RCR days imposed without consent could claim compensation equivalent to the value of the days, plus damages. For example, if an employee has 5 RCR days valued at €200 each, the loss could amount to €1,000, plus legal costs.

Four Tips to Avoid This Type of Dispute

• Check your collective agreement or employment contract: Before imposing or challenging the taking of days, carefully read the rules applicable to your CET. Some agreements may provide for specific arrangements. If you are an employee in Betton, ask your employer for a copy of the agreement.
• Obtain written consent from the employee: If you are an employer and wish to use an employee's RCR days during a period of short-time working, have a consent document signed. This will protect you in the event of a challenge. A simple email may suffice.
• Distinguish COR and RCR: Do not confuse the two types of rest. The COR can be imposed, but not RCRs placed in a CET. In case of doubt, consult a specialist employment lawyer, such as Maître Cécile Zakine.
• Document your decisions: Whether you are an employee or employer, keep a written record of all communications regarding the taking of rest days. In the event of a dispute, this evidence will be crucial.

Further Information: Related Case Law and Developments

The Court of Cassation had already ruled on the legal regime of RCRs. In a judgment of 16 February 2011 (No. 09-43-662), it held that RCRs, when allocated to a CET, are subject to the rules of the CET and not those of the COR. The 2015 judgment confirms this line. However, for ordinary paid leave days, the employer may impose their taking during short-time working, under certain conditions (Cass. soc., 17 February 2016, No. 14-20-630).

This case law is part of a protective trend for employees. The courts are attached to the employee's freedom to dispose of his time savings. A legislative development could however modify this balance. The 2016 Labour Law relaxed the rules of the CET, but without calling this protection into question. In the future, it is likely that judges will continue to protect the employee against unilateral decisions of the employer.

What You Must Absolutely Remember

1. The employer cannot impose the taking of RCR days placed in a CET without the employee's consent. This is a fundamental right of the employee.
2. On the other hand, the compulsory rest counterpart (COR) can be imposed by the employer in the absence of a request from the employee, within one year. Do not confuse the two.
3. If your employer imposes RCR days without your consent, you can challenge this before the industrial tribunal. You may obtain damages.
4. For employers: before imposing rest days, check their nature and consult the collective agreement or employment contract. It is better to negotiate than to impose.
5. In case of doubt, consult a specialist lawyer. Preventive advice can avoid costly litigation.

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 →