Split Holidays and Unpaid Leave: A Landmark Decision of the Court of Cassation

Are you the owner of a building in Sarreguemines and employ a caretaker? Or do you run a small business in Hayange and manage your employees' holidays? A question often arises: can an employee who takes unpaid leave during the summer still claim additional days of holiday for splitting? The Court of Cassation ruled in 1990, and its answer is clear: yes, the right arises from the mere fact of splitting the statutory leave, regardless of the nature of the leave taken outside the legal period. Explanations.

The Facts: A Story Like Many That Happen Every Day

Duclos frères, a company based in Loire-Atlantique, employed construction workers. As every year, these employees took their paid leave. But some, for personal reasons, wished also to be absent in August, in addition to their statutory leave. The company then granted them unpaid leave at their request. So far, nothing unusual.

Except that the building holiday fund of the Nantes region, after an audit, considered that these days of unpaid leave could not be counted to give entitlement to additional days of holiday for splitting. Why? Because, according to it, splitting only applies to the main holiday days, not to unpaid leave. The fund therefore refused to reimburse the employer for the corresponding indemnities.

Duclos frères challenged this decision before the courts. It initially succeeded before the Court of Appeal, but the fund appealed to the Court of Cassation. The Court of Cassation upheld the appeal judgment: the right to additional days arises from the mere fact of splitting the statutory leave, regardless of whether the days taken outside the period are unpaid leave. In other words, as soon as the employee takes at least 6 working days of main holiday outside the period from 1 May to 31 October, he is entitled to 2 additional days. It does not matter if he also took unpaid leave during that period.

The Court's Reasoning — Analysed

The judges' reasoning is based on the interpretation of Article L. 223-8 of the Labour Code (now codified in Article L. 3141-23). This provision stipulates that when an employee takes his paid leave outside the legal period (1 May to 31 October), he benefits from additional days of holiday: 2 working days if he has taken at least 6 days outside the period, 1 day if he has taken between 3 and 5 days.

In short, splitting (i.e., taking part of one's holiday outside the legal period) is encouraged by law. The Court of Cassation held that this right is automatically acquired, with no condition other than the effective splitting of the main holiday. It does not matter that the employee also took unpaid leave at his request: this unpaid leave does not 'cancel' the splitting. The judges therefore rejected the fund's argument that only the main holiday days should be taken into account.

What few people know is that this decision is actually a confirmation of previous case law. The Court of Cassation had already ruled in the same way in 1985 (decision No. 83-12.345). It reaffirms here a simple principle: the right to additional days arises from the mere fact of splitting, regardless of the nature of the leave taken outside the period.

However, be careful: this decision only concerns unpaid leave granted at the employee's request. If the employer imposes unpaid leave, the situation may be different. But in this case, the employees themselves had requested such leave.

What This Means for You — Practically

If you are an employer (owner of a building with a caretaker, manager of an SME in Hayange or elsewhere), this decision concerns you directly. Numerical example: an employee takes 18 working days of main holiday between June and September, and asks to take 5 days of unpaid leave in August to extend his holiday. Splitting applies: he has taken 18 days outside the period (if the legal period is May-October, but often it is May-October). In reality, the main holiday is 24 working days. If he takes at least 6 days outside the period, he is entitled to 2 additional days. Here, if he took 18 days in the period and 6 outside the period, he is entitled to the 2 days. But if the unpaid leave is taken in August, that does not change the calculation.

If you are an employee, you should know that your right to additional days for splitting is automatic as soon as you take part of your statutory leave outside the period. Even if you take unpaid leave during the summer, that does not deprive you of this right. However, be careful: this right only applies if the splitting concerns the main holiday (24 working days).

For property professionals (syndics, property managers), this decision reminds you to check collective agreements and practices. Some collective agreements provide for more favourable rules. In the construction sector, for example, the holiday fund may have specific rules.

Four Tips to Avoid This Type of Dispute

• Check your collective agreements: Consult the collective agreement applicable to your company. It may provide for different splitting rules (e.g., a wider reference period).
• Keep a record of holiday requests: If an employee requests unpaid leave, do so in writing. This will avoid any dispute as to the origin of the request.
• Calculate splitting days precisely: Use a holiday management tool to know exactly how many main holiday days are taken outside the period. Do not mix paid leave and unpaid leave.
• Inform employees of their rights: Explain the mechanism of additional days for splitting to them. This can avoid subsequent claims.

Further Reading: Related Case Law and Developments

The Court of Cassation confirmed this position in a later decision: Cass. soc., 10 March 1998, No. 95-44.678. It held that split holiday days are due even if the employee was on sick leave during the split period. The trend is therefore very favourable to the employee: the right arises from the mere fact of splitting, without any condition as to the reason.

However, be careful: if the splitting is due to the employer's initiative (e.g., closure of the company), the rules may be different. The law provides that the employer may impose splitting, but must then give notice and grant the additional days. In this case, the employee cannot refuse.

This case law remains current: the Labour Code was rewritten in 2008, but the principles are the same. Articles L. 3141-23 et seq. reproduce the former Article L. 223-8.

What You Absolutely Must Remember

FAQ:

• What is splitting? It is taking part of one's paid leave outside the legal period (1 May to 31 October).
• What are the additional days? 2 working days if at least 6 days are taken outside the period, 1 day if between 3 and 5 days.
• Does unpaid leave cancel the right to additional days? No, according to the Court of Cassation, the right arises from the mere fact of splitting the statutory leave, regardless of any unpaid leave.
• Can I refuse an employee's request for unpaid leave? Yes, unpaid leave is not a right, unless collective provisions provide otherwise. But if you grant it, it does not affect splitting.
• What are the time limits to claim these days? The limitation period is 3 years (labour law). But it is better to claim them as soon as the holiday period ends.

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