Paid leave: the first working day is not necessarily Monday morning

Are you an employer in Collioure, and you close your shop on Mondays? Be careful: your employee's first day of leave does not necessarily start on that non-working Monday. This is what the Court of Cassation ruled in 1989 in a landmark case. But what exactly does this change for the calculation of paid leave, and in particular the famous "fifth week"?

Imagine: you work in a hotel in Prades, open 7 days a week, but with a weekly rest day on Monday. You take a week of leave. Does your employer deduct 5 working days (Monday to Friday) or 6 days (Monday to Saturday)? And if Monday is a non-working day in the company, is it still counted as the first day of leave? The answer is not so simple.

The decision of 2 March 1989 (No. 86-44.120) clarifies this point: the first working day of paid leave is the first day on which the employee would have been required to work, and not the non-working day in the company. In other words, if your company does not work on Mondays, your leave does not start on that Monday, but on Tuesday. A look back at a case opposing the company Sodep to its employees.

The facts: a story like many others

In this case, employees of the company Sodep contested the calculation of the duration of their fifth week of paid leave. The employer had started their leave on a Monday, a day on which the company was closed due to the distribution of working hours over fewer than six days (for example, 5 working days from Tuesday to Saturday). The employees considered that this Monday should not have been counted as a leave day, since they would not have worked that day anyway.

In short, for the employer, the leave week began on Monday, even if it was a non-working day. For the employees, it should have started on Tuesday, the first day on which they would have worked. The dispute therefore centred on the concept of the "first working day" of leave.

The employees brought the matter before the industrial tribunal, then the court of appeal. The Court of Cassation was asked to rule on the point of law. It ruled in favour of the employees: the first working day of paid leave is the first day on which the employee would have been required to work, and not the non-working day in the company. This rule also applies to the fifth week of paid leave.

The reasoning of the court — dissected

The Court of Cassation relies on Article L. 223-7 of the Labour Code (now L. 3141-12), which defines the leave period as a continuous period of working days. But what is a working day? The law does not define it precisely, but case law and legal doctrine consider it to be the days on which the company is normally open, or failing that, the days from Monday to Saturday, excluding Sundays and public holidays.

The judges' reasoning is as follows: leave is intended to allow the employee to rest during a period when he would normally have worked. If the first day of the leave period is a non-working day in the company (e.g., Monday), the employee does not need to "take" that day since he does not work. The first day of leave must therefore be the first day on which he would have been required to work.

Be careful, however: this rule only concerns the starting point of the leave. Once the leave has started, all working days (including those non-working in the company) are counted as leave. For example, if the employee takes leave from Tuesday to Sunday, the following Monday (non-working) will not be counted, but Saturday (a working day) will be.

What few people know is that this solution was later confirmed for the fifth week of leave, even though some employers tried to apply a different regime. The Court of Cassation put an end to this discrepancy.

What this means for you — practically

For the employer in Collioure who closes on Mondays: if your employee takes a week of leave, you must start the leave on Tuesday, the first working day. You cannot count Monday as a leave day. In practice, if your employee wants to leave from Saturday to the following Sunday, you will have to count 6 working days (Tuesday to Saturday, then Monday to the following Saturday), but the first day of leave is Tuesday.

For the employee in Prades: you are entitled to have your leave start on the first day you were supposed to work. If your employer imposes a start on a non-working day, you can contest it. For example, if you work Tuesday to Saturday and your employer tells you "leave from Monday to Sunday", know that Monday does not count. Your leave starts on Tuesday.

undefined, I have come across cases where employers counted 5 days of leave for a week of 5 working days, including the non-working Monday. Result: the employee lost a day of leave. This decision helps avoid such abuses.

Four tips to avoid this type of dispute

• Check the distribution of working hours in your company. Identify precisely the non-working days and working days. The starting point of leave must be the first working day.
• Establish a clear leave calendar. Mention the actual first day of leave (e.g., Tuesday 5 July) and not a non-working day. Avoid phrases like "week of 4 July" if Monday is a non-working day.
• Inform your employees of the rule. Many are unaware that the non-working day does not count as the first day of leave. An explanatory note can avoid misunderstandings.
• Keep records of working hours and non-working days. In the event of a dispute, you will be able to prove the distribution of work.

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Further reading: related case law and developments

This decision is part of a consistent line of the Court of Cassation. For example, a ruling of 6 May 1997 (No. 95-40.291) recalled that public holidays that are non-working days in the company are not counted as leave days. However, if the public holiday falls on a normally worked working day, it is counted.

The question arose for part-time employees or those with variable hours. Case law has specified that the first working day is the one on which the employee would have been required to work according to his usual schedule. If the schedule varies, reference must be made to the average or to the employment contract.

This case law remains current: it was incorporated into the Labour Code (Article L. 3141-12) and applied by the courts. No recent legislative developments have contradicted it. Employers must therefore be vigilant.

What you absolutely must remember

FAQ:

Q: Can I start my leave on a Monday if the company is closed that day?
A: No, the first day of leave must be the first day you would have been required to work. If Monday is a non-working day, leave starts on Tuesday.

Q: What should I do if my employer counts the non-working Monday as a leave day?
A: You can remind them of the Court of Cassation case law (ruling of 2 March 1989). If refused, take the matter to the industrial tribunal to claim reimbursement of the lost day.

Q: Does this rule apply to the fifth week of leave?
A: Yes, the Court of Cassation specified that the rule is the same for all weeks of paid leave.

Q: What are the time limits for taking action?
A: You have 5 years from the end of the employment contract to claim untaken or incorrectly counted leave days. After that, it is time-barred.

Q: What if the company changes its working hours during the year?
A: The starting point of leave must be determined according to the hours in force at the time the leave is taken. If the hours change, the calculation adapts.

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