Split leave: when must the employer grant additional days?

Imagine: you are the owner of a small shop in Cassis, and every year you close your shop during the end-of-year holidays. Your employees therefore have to take their leave at that time. But then one of them claims additional split leave days, arguing that you forced them to take their leave outside the summer period. A delicate situation, isn't it?

The Court of Cassation ruled on this question in a judgment of 12 September 2018 (No. 17-15.060). In essence, it held that additional leave days for splitting are only automatically due if the employer initiated the split. In other words, if it is the closure of the company that forces the employee to take leave in winter, no additional days are due.

But what does this actually mean for you, whether owner, tenant or property professional? Let's dive into the details.

The facts: a story that happens every day

Mr X, an employee of a metalworking company in Moselle, was required by his employer to take six working days of paid leave in December due to the annual closure of the factory. The remainder of his leave (24 days) was taken between May and October. Considering that this split (separation of the main leave into several periods) was imposed by the employer, Mr X claimed two additional split leave days provided for by Article 27, 6° of the "Mensuels" rider to the collective agreement.

The Court of Appeal rejected his claim. Mr X appealed to the Court of Cassation. Before the Court of Cassation, he argued that the closure of the company prevented him from taking his 24 days of leave between 1 May and 31 October, and therefore the split was the employer's doing. But the High Court disagreed. It approved the Court of Appeal: the mere fact that the company closes in December does not prove that the employer imposed the split. In clear terms, the obligation for the employee to take six days at the end of the year due to the closure does not demonstrate that the employer initiated the split.

The reasoning of the court — broken down

The legal basis for this case is Article 27, 6° of the "Mensuels" rider to the Moselle collective agreement. This provision states that when the number of leave days taken outside the legal period (1 May - 31 October) exceeds a certain threshold, additional days are granted. But attention: these days are only due if the employer is the one who initiated the split. This is the crucial point.

The Court of Cassation interprets this condition strictly. In its view, the closure of the company is not an initiative by the employer to split the leave, but an organisational constraint. The employee must prove that the employer deliberately split the leave, for example by imposing a specific distribution. Here, the mere annual closure is not enough.

This reasoning aligns with a jurisprudential trend protective of employers. The judges recall that splitting is an exception to the principle of continuity of the main leave, and that additional days are not automatic. In other words, the employee cannot simply rely on an objective constraint; they must demonstrate an employer's intention to split.

What few people know is that this decision echoes other recent rulings. For example, in a judgment of 29 June 2016 (No. 14-29.425), the Court of Cassation had already held that splitting at the employee's initiative does not give rise to additional days. Here, it is the reverse: even if the split is imposed, the employer's initiative must be established.

What this means for you — practically

For landlord owners: if you employ a caretaker or concierge, and you close the residence in December (as in some co-ownerships in Septèmes-les-Vallons), you are not obliged to grant additional split leave days. But attention: if you impose a specific distribution of leave (e.g., 2 weeks in August and 1 week in December), then you might be liable for these days. undefined, I have come across cases where owners had to pay significant salary arrears for failing to grant these days.

For tenants: if you are an employee and your employer closes the company during the holidays, you cannot automatically claim additional days. You must prove that it was the employer who chose to split your leave, for example by imposing a week in February. In practice, keep all written documents (emails, memos) that show the employer's intention.

For buyers or co-owners: this decision concerns you less directly, but it illustrates the importance of understanding the sources of law: a collective agreement may provide for additional rights, but their application depends on specific facts. If you hire staff, check the provisions of your collective agreement.

Four tips to avoid this type of dispute

• Check your collective agreement: before organising your employees' leave, read the articles on splitting. Some agreements provide for more favourable conditions than the law.
• Formalise the initiative for splitting: if you wish to split leave, do so in writing (employee agreement, memo). In the event of a company closure, state that the split is imposed, not chosen.
• Keep a record of schedules: in case of a dispute, you will need to prove that you did not impose the split. A schedule signed by the employee is good evidence.
• Anticipate annual closures: if your company regularly closes at the end of the year, inform your employees early in the year and offer them to take their 24 days of main leave between May and October.

Further reading: related case law and developments

This decision confirms a consistent line of case law since a judgment of the Social Chamber of 29 June 2016 (No. 14-29.425). In that case, the Court held that splitting at the employee's initiative does not give rise to additional days. Here, it clarifies the reverse aspect: the employer's initiative must be demonstrated, and the closure of the company is not sufficient proof.

Since 2018, the courts have applied this condition strictly. For example, the Paris Court of Appeal, in a judgment of 12 February 2020, refused additional days to employees whose employer closed the company in August, on the grounds that the closure was an economic constraint, not an initiative to split. The trend is therefore clear: judges protect the employer who suffers a collective closure, but sanction those who deliberately split.

For the future, it is possible that the law will evolve to clarify the notion of initiative, but for now, the case law remains stable.

Key points to remember

FAQ:

• Question: My employer closes the company in December, am I entitled to additional leave days?
  Answer: No, unless you prove that your employer deliberately split your leave (e.g., by imposing a week in February).
• Question: What should I do if my employer forces me to take my leave in several periods?
  Answer: Ask them in writing for the reason for the split. If it is a personal initiative, you may be able to claim the additional days. Keep all written documents.
• Question: What are the time limits for claiming these days?
  Answer: The limitation period is 3 years from the day you became aware of your right. Act quickly.
• Question: Can my employer sanction me if I refuse a split?
  Answer: Yes, if the split is provided for by the collective agreement or a company agreement. Check the applicable texts.

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