Reference decision: cc • No. 23-22.732 • 2025-09-10
Imagine: you own an apartment in Nice, you've planned your summer holidays to enjoy your property, and a few days after your arrival, you fall ill. Flu, gastroenteritis, or worse... You spend a week bedridden, unable to enjoy your stay. A question crosses your mind: will these sick days be counted as paid leave, or will you be able to recover them later?
I encounter this situation regularly in my practice, whether with property owners on the Côte d'Azur who manage their seasonal lettings, or with tenants whose holiday plans are compromised. The boundary between paid leave and sick leave is often unclear, and the financial consequences can be significant.
A recent decision provides a clear answer to this question affecting all workers, including those in the real estate sector. But what exactly does this change for you as a property owner, tenant, or professional in the sector?
The facts: an everyday story
Take the example of Mr. Dubois, owner of a real estate agency in Le Cannet. As every year, he had planned his three weeks of paid leave in August to enjoy his second home in Saint-Tropez. On 5 August, the first day of his holiday, he felt a sharp pain in his back. After a medical consultation, his doctor prescribed ten days of sick leave for acute lower back pain.
Mr. Dubois therefore spent the first week of his holiday bedridden, unable to move normally. Upon returning to work, he asked his employer to postpone the holiday days corresponding to his period of sick leave. His employer refused, arguing that the leave had been requested and approved, and that the sick leave occurring during this period changed nothing: the days were used up.
The disagreement arose. Mr. Dubois applied to the labour court (the specialised jurisdiction for disputes between employers and employees), which ruled in his favour at first instance. The employer appealed, and the case went up to the urbanisme-voisin-prefond-personnel" class="internal-link" title="Violation du PLU : quand un voisin peut-il vous attaquer pour non-respect des règles d'urbanisme ?">Cour de cassation, the highest judicial court in France. The judicial process lasted nearly two years, with technical arguments about the interpretation of the French Labour Code and European directives.
undefined, I have handled cases where property owners who are landlords, often working as self-employed individuals, found themselves in the same situation: falling ill during their holidays, they lost weeks of well-deserved rest, with a sense of double punishment.
The court's reasoning — analysed
The judges of the Cour de cassation examined this case with particular attention to two fundamental texts: Article L. 3141-3 of the French Labour Code and Article 7, paragraph 1, of European Directive 2003/88/EC concerning the organisation of working time.
Article L. 3141-3 of the Labour Code provides that paid leave is granted to allow the employee to rest. The European Directive, for its part, establishes the right to at least four weeks of paid annual leave. But how to interpret these texts when sick leave occurs during holidays?
The Court recalled an essential principle: paid leave is intended for the worker's rest and relaxation. In other words, if you are on sick leave, you are not resting in the sense of paid leave—you are on medical incapacity for work. These are two distinct legal situations with different purposes.
The judges therefore considered that national provisions that would deprive a worker of their paid leave when they are on sick leave during that period would be contrary to European law. In clear terms, sick leave interrupts the counting of paid leave. The days coinciding with the period of incapacity must be able to be postponed.
This reasoning constitutes a confirmation and strengthening of existing case law. The Court of Justice of the European Union had already ruled in this sense in 2012 (ANGED case), but this new decision of the French Cour de cassation anchors this principle in national law with enhanced authority.
The employer's main argument—that the leave had been planned and could not be modified retroactively—was rejected. The judges considered that protecting the worker's health and their effective right to rest took precedence over administrative considerations of leave management.
What this changes for you — concretely
If you are a property owner who is a landlord and you exercise a professional activity, this decision concerns you directly. Imagine you have a property in Nice that you let seasonally, and you fall ill during your own holidays. You will now be able to recover the holiday days corresponding to your sick leave.
Concretely, if you had taken 15 days of leave in July and were on sick leave for 5 of those days, you will be entitled to postpone these 5 days. Be careful, however: you must provide your employer with the medical certificate justifying your sick leave, and make your request within a reasonable time after your return.
For tenants who work, this is also good news. How many times have I heard tenants complain about having "lost" their holidays due to illness? From now on, if you fall ill during your holiday in your summer rental, you may potentially recover these days to fully enjoy your accommodation later.
Real estate professionals—agents, developers, managers—are also concerned. Leave management in this sector, often marked by seasonal activity peaks, becomes more flexible. An employee who falls ill during their summer holidays will be able to postpone their days, which can facilitate team planning.
What few people know: this rule also applies to additional seniority leave, RTT (reduction of working time), and days taken from the CET (time savings account). If the start date of your leave is a working day, and you fall ill, you can postpone the days concerned.
Four tips to avoid this type of dispute
- Keep your medical certificate carefully: in case of sick leave during your holidays, your medical certificate is your essential proof. Scan it, keep the original, and send a copy to your employer as soon as you return.
- Inform your employer quickly: even if you are on holiday, notify your employer of your sick leave as soon as possible. A simple email may suffice, followed by the medical certificate as soon as possible.
- Document your postponement requests: when you request to postpone your holiday days, do so in writing (email with read receipt, registered letter) clearly specifying the dates concerned and attaching the medical justification.
- Check your collective agreement: some collective agreements, particularly in real estate, may contain specific provisions on leave. Consult it or seek advice from a legal professional.
Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.
In-depth analysis: related case law and developments
This decision fits into a jurisprudential trend favourable to workers regarding the protection of paid leave. Already in 2019, the Cour de cassation had recalled that paid leave days could not be considered taken when the employee was on leave for a work accident (Cass. soc., 13 March 2019, No. 17-24.229).
The difference with the 2012 decision of the European Court of Justice (ANGED case) lies in the national anchoring: the Cour de cassation now directly applies the principle by interpreting the French Labour Code in light of European law. This is a significant evolution that strengthens legal certainty.
For the future, this decision could influence other areas of labour law, notably the question of leave for family events (birth, marriage) that would coincide with periods of sick leave. The logic of protecting rest time and personal life seems to be asserting itself.
In the real estate sector, this could also have repercussions on schedule management, particularly for sales agents whose activity is very seasonal on the Côte d'Azur. Employers will need to anticipate this possibility of postponing leave in their organisation.
What you absolutely must remember
Before this decision / After this decision
Before: If you fell ill during your paid leave, these days were generally considered taken and used up. Few possible remedies.
After: Paid leave days coinciding with a period of sick leave can be postponed. You must justify your sick leave with a medical certificate and inform your employer.
Checklist "What to do if you fall ill during your holidays":
- Consult a doctor and obtain sick leave with a medical certificate.
- Inform your employer of your situation (email, telephone).
- Keep all your documents (certificate, proof of sending).
- Upon your return, request in writing the postponement of the holiday days concerned.
- If your employer refuses, consult a lawyer specialised in labour law.
Frequently asked questions:
Q: Does this also work for self-employed individuals?
A: No, this decision concerns employees. Self-employed individuals (like some property owners who are landlords) do not benefit from the same rules on paid leave.
Q: How long do I have to request postponement?
A: There is no fixed legal deadline, but act quickly after your return. Ideally, within the following days.
Q: Can my employer refuse?
A: No, if you justify your sick leave with a medical certificate, your employer must accept the postponement of the days concerned.
Do you find yourself 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 →
