Paid Leave and Public Holidays: When Counting in Working Days Changes Everything

Imagine: you own a small building in Limoges and employ a caretaker. He takes his leave from 22 December to 5 January, a period including Christmas and New Year's Day. Upon his return, he claims an extra day off because Christmas fell on a Sunday, which is usually a non-working day in your company. You argue that his leave is counted in working days and that this public holiday does not entitle him to compensation. Who is right?

This is exactly the question the Court of Cassation had to decide in this 1997 case, opposing an employee of the Caisse Régionale d'Assurance Maladie du Sud-Est to his employer. The employee had taken leave from 22 December 1982 to 5 January 1983, and considered that the public holiday on 1 January (falling on a Saturday, a non-working day in the company) should be 'given back' to him in the form of an extra day of leave.

The judges' answer was clear: when leave is calculated in working days (i.e., the days actually worked in the company), a public holiday falling on a non-working day has no impact on the count. No extension, no extra day. A decision that, nearly thirty years later, continues to govern relations between employers and employees.

The facts: a story like many others

Mr. X, an employee of the Caisse Régionale d'Assurance Maladie du Sud-Est in Brive-la-Gaillarde, had more than one year's seniority. As every year, he submitted an annual leave request for the period from 22 December 1982 to 5 January 1983. Nothing exceptional: many employees choose this period to enjoy the holidays.

Except that 1 January 1983 fell on a Saturday. In this office, Saturday was a non-working day (only Monday to Friday were worked). Mr. X considered that this public holiday, although usually not worked, should be compensated by an extra day of leave, in accordance with a protocol agreement of 26 April 1973 which provided for exceptional leave for legal holidays falling on a working day usually not worked.

The employer refused. According to him, since Mr. X's leave was counted in working days (and not in business days), the fact that 1 January was a non-working Saturday did not entitle him to anything. The employee then referred the matter to the industrial tribunal, then the court of appeal, which ruled in his favour. But the employer appealed to the Court of Cassation. And the Court of Cassation quashed the appeal judgment, remanding the case to another court.

The reasoning of the court — dissected

The Court of Cassation relied on two texts: Article L. 223-2 of the Labour Code (now L. 3141-3) which defines the concept of business day, and the protocol agreement of 26 April 1973 specific to the Social Security system.

The reasoning is subtle. First, the Court recalls that when leave is counted in business days (Monday to Saturday, except Sunday and public holidays), a public holiday falling on a business day must be extended by one day. This is logical: the employee should not lose a day of leave because a public holiday falls during his holiday.

But in this case, the count was in working days, i.e., the days actually worked in the company (usually Monday to Friday). In this case, a public holiday falling on a non-working day (like Saturday) is not a lost day of leave since the employee would not have worked that day anyway. So no compensation.

The Court further specifies that the protocol agreement provided that the exceptional leave for a legal holiday should be taken on the nearest working day. However, Mr. X was on leave those days, so he could not benefit from it. The decision is logical: one cannot cumulate two advantages for the same fact.

What this means for you — concretely

For employers (landlords employing a caretaker, co-ownership managers with staff, etc.): if you count your employees' leave in working days, you do not have to grant an extra day when a public holiday falls on a non-working day in your company. For example, if your company is closed on Saturday and 1 January falls on a Saturday, an employee on leave that week cannot claim an extra day. Potential saving: one day's salary per concerned employee, which, for a small co-ownership in Limoges employing a caretaker, represents about €150 per year.

For employees: be careful to check how your employer counts your leave. If it is in working days, you will gain nothing if a public holiday falls on a non-working day. On the other hand, if the count is in business days (rarer today), you are entitled to an extension when the public holiday coincides with a business day, even if that day is usually not worked in the company.

For property professionals (property managers, syndics): when drawing up employment contracts for caretakers or concierges, always specify the method of counting leave in the contract. An omission can lead to disputes, as in this case which lasted several years.

Four tips to avoid this type of dispute

• Specify the counting method in the employment contract: explicitly state whether leave is calculated in business days (Monday to Saturday) or in working days (days actually worked). In Brive-la-Gaillarde as elsewhere, a well-drafted contract avoids 90% of conflicts.
• Inform your employee in writing before each leave period: a simple letter or an addendum to the contract reminding the rules applicable to public holidays can prevent any challenge. Keep a signed copy.
• Use an up-to-date payroll software: modern tools automatically incorporate the rules of the Court of Cassation. Check that your software distinguishes between business days and working days.
• If in doubt, consult a lawyer specialised in labour law: the rules are complex and vary according to collective agreements. A 30-minute consultation with Maître Zakine (€45) can save you from a conviction at the industrial tribunal.

Further reading: related case law and developments

This 1997 decision is part of a consistent line of the Court of Cassation. As early as 1995, in a judgment of 10 May (No. 93-42.187), the Court ruled that for employees on a fixed-day scheme, a public holiday falling on a non-working day did not give right to recovery. In 2004, it extended this reasoning to RTT days (judgment of 23 June 2004, No. 02-40.927).

The trend is therefore clear: the judges favour a strict interpretation of the texts, to the detriment of employees' claims. No reversal is to be expected, as the law itself now clearly distinguishes the two counting methods (Articles L. 3141-3 et seq. of the Labour Code).

For the future, employers must be vigilant: some collective agreements may provide for more favourable rules for employees. For example, the collective agreement for the real estate sector (IDCC 1527) provides that public holidays are days off and paid, even if they fall on a non-working day. Always check the applicable collective agreement.

What you absolutely need to remember

FAQ: 5 essential questions

1. My employee takes leave from 24 December to 2 January. Christmas Day falls on a Wednesday (working day). Do I have to extend his leave by one day? No, because Christmas Day is a working day: it is included in his leave. The employee benefits from 10 days of leave (24, 26, 27, 28, 29, 30, 31, 1, 2 January), without an extra public holiday to make up.
2. What if 1 January falls on a Saturday (non-working day in my company)? Nothing to do either. The employee has not lost a day of leave since Saturday is not a working day. His count remains unchanged.
3. Can I change the counting method during the contract? Yes, but only with the employee's agreement, formalised by an addendum. An unilateral change would be considered a modification of the employment contract.
4. What if my employee still claims an extra day? Explain the rule to him based on this Court of Cassation decision. If he persists, suggest he consult a lawyer or the labour inspection services.
5. Does this rule apply to public holidays like 1 May? Yes, 1 May is a paid public holiday. But if it falls on a non-working day, it does not give right to recovery, unless your collective agreement provides otherwise.

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 →