Paid Leave: Employer Cannot Impose Off-Season Carryover Without Employee Consent

You are an employee in Montauban, working for a technical design office. Your employer asks you to take at least five days of leave outside the summer period (1 May – 31 October), in exchange for additional days. You wonder: does he have the right to require this carryover without your consent? The question is simple, but the answer was debated until 2018 before the French Supreme Court.

This decision provides crucial clarification: even if a collective agreement provides for compensation, the employer cannot split the main leave of more than twelve days without the employee's express consent. In short, your right to take your five weeks during the summer is protected, unless you freely agree to reschedule them.

For landlord owners and real estate professionals, this rule also has indirect implications: managing a rental property often involves planning the holidays of tenants or tradesmen. Better to know your rights to avoid conflicts.

The Facts: A Story Like Any Other

Mr. X, an engineer at a design office in Beaumont-de-Lomagne, was subject to the national collective agreement for technical design offices, consulting engineering firms and consultancy companies (known as Syntec) of 15 December 1987. His employer required him each year to take at least five working days of leave outside the period from 1 May to 31 October. In return, the agreement granted additional days of leave: one day if the number of days taken outside the period was less than five, two days beyond that.

Mr. X considered that this practice violated Article L. 3141-19 of the Labour Code, which provides that main leave exceeding twelve working days can only be split with the employee's consent. He brought the matter before the industrial tribunal (conseil de prud'hommes), then the Court of Appeal, which ruled in his favour. The employer appealed to the Supreme Court, arguing that the collective agreement validly derogated from this rule by offering split days.

The Supreme Court had to decide: can a collective agreement provide for compulsory splitting, even with compensation? On 10 October 2018, it answered no, dismissing the employer's appeal. Mr. X's story illustrates a classic conflict between the individual rights of the employee and the organisational constraints of the company.

The Reasoning of the Court — Explained

The Supreme Court relies on Article L. 3141-19 of the Labour Code, in its version prior to the 2016 Labour Law. This provision states that the main leave (the first four weeks) cannot be split beyond twelve working days without the employee's consent. In other words, if the employer wants you to take your leave in several instalments, he must obtain your agreement for the days beyond two weeks.

The employer invoked Article 23 of the Syntec agreement, which provided for additional days of leave if the employee took at least five working days outside the summer period. He argued that this compensation justified the compulsory splitting. But the Court considered that this provision does not derogate from the legal rule: it adds rights, but does not remove the requirement for the employee's consent. In short, offering additional days does not transform a constraint into freely given consent.

This reasoning confirms settled case law: collective agreements can improve the position of employees, but cannot reduce the minimum rights provided by law. The judges recall that the employee's consent must be express and not presumed. What few people know is that even if the employer offers extra days, the employee can refuse the splitting without losing the extra days? No, precisely: the extra days are conditional on the splitting, but the employee retains the right to refuse the splitting and therefore to renounce the extra days. It is a choice that belongs to him.

What This Changes for You — Practically

For employees: this decision protects you against pressure from your employer. If you are a permanent employee in Montauban, your employer cannot force you to take your holidays in November on the pretext that the collective agreement allows it. You must give your written consent. Example: if you are entitled to 30 working days (5 weeks), your employer can only split the main leave of 24 days with your agreement; without agreement, you must take at least 12 consecutive days during the summer period.

For employers: beware of contractual clauses that seem advantageous but violate the law. If you manage an SME in Beaumont-de-Lomagne, check your practices. In the event of litigation, you risk damages for the harm suffered by the employee (e.g., €1,500 in damages for loss of leave).

For real estate professionals: this decision is not directly related to real estate, but it illustrates the importance of the counterparty's consent. In a lease, the landlord cannot unilaterally impose clauses splitting the rent or holidays without the tenant's agreement. Transpose this principle: any modification of a fundamental right requires free and informed consent.

Four Tips to Avoid This Type of Dispute

• Check your collective agreement: consult the provisions on splitting leave. If they seem to impose splitting without your consent, seek advice from a lawyer.
• Require a written document: if your employer offers you splitting with additional days, ask for written confirmation of your free and informed consent.
• Politely refuse: if you consider that the splitting disadvantages you, refuse in writing. You retain your full rights to summer leave.
• Keep evidence: keep your leave schedules, emails, and any document showing possible pressure. In the event of a dispute, these elements will be decisive.

Further Details: Related Case Law and Developments

The Supreme Court had already ruled, in a judgment of 13 June 2012 (No. 10-27.305), that the employer cannot impose splitting without consent, even if the collective agreement provides for it. The 2018 decision confirms this line. However, the Labour Law of 8 August 2016 amended Article L. 3141-19: since then, splitting is possible without consent if the employer grants additional days in accordance with the law. But be careful: the commented decision concerns the earlier law. For facts after 2016, the rule is more flexible. The courts continue to ensure that the employee's consent is genuine and not coerced. The trend is therefore towards the protection of consent.

Key Points to Remember

• Before 2016: splitting of the first 4 weeks beyond 12 days impossible without the employee's consent, even if the collective agreement offers additional days.
• Since 2016: the employer can split without consent if he grants additional legal days (Law of 8 August 2016).
• What to do if your employer insists? Refuse in writing and request the application of Article L. 3141-19. Consult a lawyer if necessary.
• What remedies? Bring the matter before the industrial tribunal within 12 months of the end of the employment contract to obtain damages.

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 →