Exceptional Leave for Union Representatives: A Key Decision of the Court of Cassation

You are a union representative in a bank in Toulouse, and your employer criticises your absences for corporate meetings. He considers that the total number of exceptional leave days granted to your organisation is excessive, and refuses to pay you for certain absences. You wonder: can the employer limit these days based on a global quota? The answer is no, according to the Court of Cassation.

On 8 April 1992, the social chamber of the Court of Cassation ruled on a crucial issue for holders of a union mandate. Article 71 of the national collective agreement for banks of 20 August 1952 provides for exceptional leave to attend joint or union meetings, without deduction from salary. But how far does this right extend? The judges specified that the assessment must be done individually per employee, not by cumulating the absences of all representatives.

In practical terms, if each employee takes a reasonable number of days, the employer cannot refuse on the grounds that the total absences would be too heavy. A decision that reassures trade unionists, but also imposes a certain moderation. Analysis.

The facts: a story like many others

In this case, employees of a bank, acting as union representatives, had taken exceptional leave days to attend meetings provided for by the collective agreement. The employer considered that the total number of such leave days, cumulated among all employees, was excessive. He therefore refused to pay for certain absences, withholding the corresponding sums from salaries.

The employees brought the matter before the employment tribunal, which found in their favour. The employer then appealed to the Court of Cassation. The Court had to determine whether the assessment of the excessive nature of the leave should be done globally (all employees combined) or individually.

The Court's reasoning is clear: 'the assessment of exceptional leave is carried out individually for each employee concerned'. In other words, we look at how many days each employee has taken, not the total days taken by all unionists. The employment tribunal had found that for each employee, the number of days was not excessive. The Court of Cassation validates this approach and dismisses the employer's appeal.

The reasoning of the court — explained

The legal basis is Article 71 of the national collective agreement for banks of 20 August 1952. This text grants short-term exceptional leave to holders of a union mandate to attend joint corporate meetings, meetings of signatory trade unions, or for approaches to public authorities. It specifies that this leave 'does not give rise to any deduction from salaries, bonuses and exceptional allowances'.

The Court of Cassation interprets this text by affirming that the assessment of the excessive nature of the leave must be done per employee, not globally. Why? Because the right to leave is individual: each union representative is entitled to these absences, within reasonable limits. The employer cannot oppose a global quota to limit individual rights.

This decision confirms previous case law, which protects union representatives against abusive restrictions. It is part of a logic of protection of union activity, recognised as a fundamental freedom (Article L. 2131-1 of the Labour Code). The trial judges (employment tribunals) have sovereign power to assess whether the number of leave days per employee is excessive or not. Here, they considered it was not, and the Court of Cassation follows them.

A rhetorical question arises: could the employer have won if he had shown that a particular employee had taken days abusively? Yes, but that was not the case. Their global argument was rejected.

What this changes for you — in practice

For union representatives: you can exercise your mandate without fear of having your absences refused on the grounds that 'too many colleagues are absent'. Each absence is judged individually. In Toulouse, if you are a union delegate in a bank and you take 3 days per month for meetings, your employer cannot refuse them on the pretext that other delegates have also taken days. Nevertheless, keep a record of each absence (agenda, summons) to justify the exceptional nature.

For employers: you cannot set a global cap on union leave days. You must assess each request individually. If an employee abuses (e.g., 20 days per month), you can refuse, but not based on the cumulative absences of all unionists. In Colomiers, a bank employing 5 representatives cannot say: 'you have already taken 50 days among the five of you, so I refuse Mr Dupont's request'. You must look at what Mr Dupont has taken individually.

For non-union employees: this decision does not directly concern you, but it illustrates the importance of collective rights. If you witness union difficulties in your company, know that the law protects the exercise of the mandate.

Example with figures: a representative in Toulouse takes 12 exceptional leave days in the year (1 per month). His colleague in Colomiers takes 15. The employer cannot add them together (27 days) to say it is excessive. Each is within a reasonable range (less than 30 days per year).

Four tips to avoid this type of dispute

• For union representatives: systematically note the purpose of each absence (joint meeting, union approach) and keep supporting documents (summons, minutes). In case of dispute, you can prove the exceptional nature.
• For employers: set up individual monitoring of union absences, without global cumulation. Accept requests as long as they remain reasonable (a few days per month). If an employee exceeds 30 days per year, consider possible abuse.
• For both parties: favour dialogue. An annual meeting between management and unions can set clear rules on the procedures for taking this leave (notice period, indicative maximum number).
• In case of dispute: refer the matter to the employment tribunal promptly (limitation period of 2 years for actions relating to the performance of the employment contract). A specialised lawyer will help you demonstrate the individual nature of the absences.

Further reading: related case law and developments

This 1992 decision is part of a protective line of union rights. It confirms an earlier judgment of the Court of Cassation of 13 December 1989 (No. 87-41.123), which had already ruled that exceptional leave is an individual right. Since then, case law has evolved to clarify the notion of 'abuse'. For example, in a judgment of 10 May 2006 (No. 04-46.006), the Court considered that repeated absences without serious justification may be abusive, even if each individual instance is moderate.

The trend is therefore towards a balance: recognition of the individual right, but with a reasonable limit. Courts examine case by case, taking into account frequency, duration and justification. For the future, it can be expected that judges will be increasingly attentive to proportionality: a few days per month are acceptable, whole weeks could be challenged.

In practice: what to do

FAQ:

1. What if my employer refuses my exceptional leave citing a global quota? Remind them of this decision: the assessment is individual. Send a written note quoting Article 71 of the collective agreement and this judgment. If they persist, refer to the employment tribunal.
2. Can I cumulate annual leave and exceptional leave? Yes, exceptional leave is not deducted from annual leave (Article 71). You retain your 5 weeks of paid leave.
3. What are the time limits for challenging a refusal? You have 2 years from the refusal to act before the employment tribunal. Do not delay, as evidence fades.
4. Can my employer require notice? The collective agreement does not provide for it, but it is prudent to give a few days' notice. In an emergency, the absence can be justified retrospectively.

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