Split Holidays: The Right to Extra Days for Employees of Design Offices

Imagine: you work in a design office in Cagnes-sur-Mer, and your employer asks you to take some of your leave outside the summer period. You think you are entitled to extra days? That is exactly the question that arose for an employee of the company Speos. This decision of the Court of Cassation clarifies a point that is often a source of conflict: does splitting annual leave give the right to extra days, even if the collective agreement refers to working days? The answer is yes, and it has concrete consequences for thousands of employees.

The facts: a story like any other

Mr. X, an employee of the company Speos, a technical design office based in Antibes, took his leave from 1996 to 1999 by splitting it: he took part in the summer and the rest at other times of the year, as his employer requested. But when he claimed the two extra days of leave provided for by Article L. 223-8 of the Labour Code (now L. 3141-23) in case of split holidays, his employer refused, arguing that the collective agreement for technical design offices (known as "Syntec") provided for calculation in working days and that this provision derogated from the general law. The employee then brought the case before the industrial tribunal. At first instance, he won: the tribunal ordered the employer to pay him a compensatory allowance. But Speos appealed. The Versailles Court of Appeal upheld the judgment, and the case went up to the Court of Cassation. The employee ultimately prevailed, but the journey was long.

The reasoning of the court — explained

The Court of Cassation had to answer a specific question: does Article 23 of the Syntec collective agreement, which sets the duration of leave in working days and provides for extra days if the employee takes leave outside the period (1 May to 31 October), derogate from Article L. 223-8 of the Labour Code? The latter provides that if the employee splits his main leave (excluding the 5th week), he is entitled to two working days of extra leave. The Court ruled: no, the agreement does not expressly derogate. It is merely a transposition of the legal duration into working days. In other words, the right to extra days in case of split holidays remains applicable, even if the agreement uses the term "working days". The judges emphasised that to derogate from a mandatory legal provision, a collective agreement must do so expressly and clearly. However, Article 23 does not state that it excludes extra days. In short, an employee who splits his leave at the request of his employer retains his right to the two extra days. This decision confirms the primacy of the Labour Code over collective agreements when they are not sufficiently precise.

What this changes for you — concretely

For employees of design offices, engineering firms and consulting companies, this decision is a protection. If you split your leave (for example, you take 12 days in August and the rest in November), and your employer asks you to do so, you are entitled to two extra days of leave or a compensatory allowance. In Antibes, an employee who took 18 days in summer and 6 days in winter out of the 24 annual working days could claim 2 extra days if they could not be taken. For employers, beware: failing to grant these days exposes you to judgments at the industrial tribunal, with damages that can amount to several hundred euros per year per employee, not to mention procedural costs. If you are an employee, check your pay slips: if you split your leave without obtaining extra days, you can claim back pay for the last 3 years (three-year limitation period).

Four tips to avoid this type of dispute

• Check your collective agreement: even if it uses working days, the right to extra days in case of splitting remains, unless there is an express derogation.
• Keep your leave requests in writing: if the employer requires splitting, keep a record (email, letter) to prove that it was at his request.
• Calculate your entitlements: for a split of the main leave (excluding the 5th week), you are entitled to 2 additional working days if you have taken at least 6 days of leave outside the legal period (1 May to 31 October).
• Consult a lawyer lawyer: if in doubt, expert advice can avoid lengthy and costly litigation.

Further details: related case law and developments

This decision is part of a protective line for employees. The Court of Cassation has already held, in a judgment of 28 March 2000 (no. 98-40.344), that collective agreements can only derogate from the rules on splitting if they are more favourable. Here, the Court confirms that the mere fact of expressing leave in working days is not a derogation. Since 2002, the trend has been constant: judges protect the right to extra days, even when the employer relies on a collective agreement. For the future, employers will need to be careful in drafting company agreements if they wish to exclude these extra days. What few people know is that this right also applies to executives on a fixed number of days per year, subject to certain conditions.

Checklist before taking action

• Have I split my main leave (excluding the 5th week)? If yes, I am entitled to 2 extra days.
• Did my employer ask me to split? Even without an express request, voluntary splitting gives the right to extra days.
• Have I taken at least 6 working days outside the period (1 May to 31 October)? This is the condition for benefiting from the 2 days.
• Has my employer refused to grant me these days? I can bring the case before the industrial tribunal within 3 years.
• Have I kept proof of my leave dates? Yes, pay slips, emails, written requests.

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 →