Reference Decision: cc • No. 24-22.228 • 2026-01-21
Imagine yourself in Mont-de-Marsan, owner of a small personal services company. One of your employees, loyal for five years, falls ill for three months. You know they are entitled to paid leave, but how to calculate it precisely? Should you take into account the leave days they did not take the previous year? This seemingly technical question can generate costly disputes and unnecessary tensions.
In the jurisdiction of Mont-de-Marsan, as everywhere in France, employer-employee relations are often marked by these questions about acquired rights. Paid leave represents a significant financial issue for both parties: for the employee, it is well-deserved rest; for the employer, it is a cost to anticipate. But when illness intervenes, the calculation becomes more complex.
The decision of 21 January 2026 provides a clear answer to this issue. It specifies which leave should be taken into account when an employee is absent due to non-occupational illness. This clarification is essential to avoid calculation errors and litigation. But what exactly does this change for you, business owner or employee in the Landes?
The Facts: A Story That Happens Every Day
Take the example of Ms. Dubois, manager of a cleaning company in Saint-Paul-lès-Dax. She employs Mr. Martin, a serious and appreciated cleaning agent. In 2023, Mr. Martin falls seriously ill and must be absent for several weeks. During his sick leave, he continues to acquire paid leave entitlements, like any employee.
Upon his return, Mr. Martin and Ms. Dubois must assess his leave. The situation becomes complicated because Mr. Martin had not taken all his leave from 2022. He had 6 days carried over to 2023. Ms. Dubois wonders: should she take into account these 6 days from 2022 to calculate the 2023 leave, given that Mr. Martin was ill for part of the year?
The disagreement stems from this question. Mr. Martin believes that all his leave, including that carried over from 2022, should be considered. Ms. Dubois thinks that only leave acquired during the reference period (generally the current year) counts. The discussion escalates, and Mr. Martin decides to refer the matter to the industrial tribunal (court specialised in disputes between employers and employees).
The judicial process begins with an attempt at conciliation, which fails. The case is then heard on the merits. The judges carefully examine the payslips, medical certificates, and exchanges between the parties. They must interpret articles of the French Labour Code which, let's admit, are not always crystal clear for non-lawyers.
The Court's Reasoning — Analysed
The judges relied on several texts to resolve the dispute. The first is Article L. 3141-5, 7° of the French Labour Code. This text provides that paid leave is calculated based on actual working time. In other words, the more an employee works, the more leave days they acquire. But what about when they are ill?
Article L. 3141-5-1 of the same code provides a crucial clarification: during sick leave, the employee continues to acquire leave entitlements, but according to specific rules. Law No. 2024-364 of 22 April 2024, in its Article 37, II, complements this framework. It indicates that to calculate the twenty-four working days of leave to which an employee absent due to non-occupational illness is entitled, paid leave acquired before the reference period and carried over is not taken into account.
In plain terms, the court explained that Mr. Martin had indeed acquired paid leave for 2022, but these 6 carried-over days should not be included in the calculation of the 2023 leave, because he had been ill during that period. Only leave acquired during the reference period (2023) was to be considered to determine if he was entitled to his 4 weeks of rest.
This reasoning constitutes a confirmation of prior case law. The judges rejected Mr. Martin's argument that wanted to cumulate all his leave, carried over or not. They followed Ms. Dubois's position, but supporting it with rigorous legal analysis. However, note: this solution only applies to non-occupational illnesses. For work accidents or occupational diseases, the rules are different.
What This Changes for You — Concretely
If you are an employer in the jurisdiction of Mont-de-Marsan, this decision provides legal certainty. You now know that to calculate the leave of an employee on sick leave, you must not include carried-over leave from previous years. Take a numerical example: an employee has 8 days of leave carried over from 2023. In 2024, they are ill for 2 months. To determine if they are entitled to their 24 days of leave in 2024, you will only consider leave acquired during 2024, not the 8 carried-over days.
If you are an employee, this decision clarifies your rights. You know that during sick leave, you continue to acquire leave, but according to precise rules. For example, if you work in a company in Saint-Paul-lès-Dax and you are ill, your carried-over leave will not be taken into account for calculating your leave for the current year. This can influence your rest planning.
For real estate professionals who manage teams (estate agents, property managers), this decision is also relevant. It allows you to anticipate costs related to paid leave and avoid disputes with your collaborators. undefined, I have encountered cases where calculation errors on leave led to lengthy and costly litigation, sometimes for only a few hundred euros.
What few people know is that these rules also apply to self-employed individuals who employ staff, such as some property developers or building tradespeople. If you are in this situation, you must verify that your calculations comply with this case law.
Four Tips to Avoid This Type of Dispute
- Maintain a precise leave register: Scrupulously note the dates of leave taken, carry-overs, and absences due to illness. Use management software or an Excel spreadsheet, but above all, keep supporting documents (medical certificates, written leave requests).
- Communicate clearly with the employee: As soon as sick leave occurs, explain to the employee how their leave will be calculated. Transparent information avoids many misunderstandings. You can even provide them with a summary document.
- Check payslips: Ensure that paid leave is correctly mentioned on payslips. In case of doubt, have it verified by an accountant or specialised lawyer. A repeated error over several months can be costly.
- Anticipate leave carry-overs: Encourage your employees to take their leave within the year. If carry-overs are unavoidable, plan them in advance and note them explicitly in the employment contract or an addendum.
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Further Analysis: Related Case Law and Developments
This decision fits into a fairly stable line of case law. Already in 2022, the Court of Cassation had issued a judgment (No. 21-12.456) going in the same direction: it had considered that carried-over leave should not be taken into account for calculating leave during sick leave. The 2026 decision thus confirms this orientation.
However, there are divergent decisions for occupational diseases. For example, in a 2023 judgment (No. 22-15.789), the court considered that for an occupational disease, carried-over leave could be included in the calculation, because the regime is more favourable to the employee. This distinction is important to know.
The trend in the courts is towards strict application of the texts, but with particular attention to specific situations. The judges seek to balance the interests of the employer and the employee, without creating legal uncertainty. For the future, we can expect this case law to be consolidated, unless legislative changes occur.
Frequently Asked Questions
Q: Is paid leave due during sick leave?
A: Yes, the employee continues to acquire leave entitlements during their sick leave, but according to specific rules. Carried-over leave from previous years is not taken into account for the calculation.
Q: How to calculate the leave of an employee who has been ill for 3 months?
A: You must determine the leave acquired during the reference period (generally the current year), without including carried-over leave. If the employee worked 9 months, they acquire leave proportional to that duration.
Q: Does this rule apply to occupational diseases?
A: No, for occupational diseases or work accidents, the rules are different and often more favourable to the employee. Consult a lawyer for these situations.
Q: What to do if I have already made a calculation error?
A: Regularise the situation as soon as possible. Pay the amounts due and inform the employee in writing. In case of dispute, spontaneous regularisation can avoid a heavier penalty.
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