Paid holidays for part-time employees: a decision clarifying their rights

Imagine the scene: in Biarritz, in a small hotel on the beach, a part-time employee claims additional holiday days. His employer, the owner of the establishment, thought he was doing the right thing by only counting the days when the employee would have had to work. But the court ruled against him. This decision of the French Supreme Court (Court of Cassation), rendered on 22 February 2000, settles a question that thousands of employers face every day: how to calculate the paid holidays of a part-time employee?

Are you the owner of a business in Anglet or the manager of a co-ownership in Biarritz? Do you employ part-time staff? This decision directly concerns you. It recalls a fundamental principle: the right to paid holidays is the same for everyone, regardless of working hours. However, this does not mean that the holiday pay is unlimited. The Court of Cassation also sets a limit: the holiday pay cannot exceed one-tenth of the total remuneration received during the reference period.

In short, this decision provides legal certainty for employers while protecting employees' rights. But what does it actually change? How should holiday days be calculated? And why is this case still cited more than twenty years later? Let's dive into the details.

The facts: a story like any other

Mr. X, a part-time employee in a company in the Pau region, worked from 1 June 1995 to 31 May 1996. At the end of this period, he took paid holidays. His employer, like many others, counted the holiday days by only counting the days when the employee would have had to work. For example, if Mr. X worked three days a week, the employer only counted three holiday days per week, considering that non-working days were not to be counted.

But Mr. X disagreed. He believed that his holidays should be calculated as for a full-time employee: 30 working days (i.e., 5 weeks) per year, regardless of his working hours. He therefore referred the matter to the Labour Court (conseil de prud'hommes, the competent court for individual labour disputes) to claim additional holiday pay and a compensatory allowance (i.e., money in lieu of untaken holiday days).

The Labour Court partially ruled in his favour: it granted a holiday pay higher than one-tenth of the total remuneration received. The employer, dissatisfied, filed an appeal in cassation (a recourse before the highest judicial court). The Court of Cassation ultimately quashed (annulled) the Labour Court's judgment, finding that the lower court had misapplied the law.

The reasoning of the court — dissected

The Court of Cassation relied on three articles of the Labour Code (the texts governing labour law): Articles L. 212-4-2, paragraph 9, L. 223-2 and L. 223-11. These articles establish two essential principles.

First principle: a part-time employee is entitled to a holiday of the same length as a full-time employee. In other words, an employee who works half-time is entitled to the same 5 weeks of paid holidays as a full-time employee. The length of the holiday must not be reduced proportionally to working hours. Thus, when Mr. X went on holiday, the starting point was the first day he would have had to work if not on holiday, and all working days (i.e., days of the week except Sundays and public holidays) until the return were to be counted as holiday days, even if he did not usually work on those days.

Second principle: the holiday pay (the money paid during holidays) is calculated according to the one-tenth rule: it is equal to one-tenth of the total remuneration received by the employee during the reference period (generally from 1 June to 31 May). However, there is a more favourable rule: if the employee would have earned more by continuing to work during the holiday period, that higher amount must be retained. In Mr. X's case, the Labour Court had granted him a holiday pay higher than one-tenth, without justifying that this sum corresponded to what he would have earned by working. The Court of Cassation therefore censured this decision.

What few people know is that this decision is neither an evolution nor a reversal of case law (i.e., a change in the interpretation of the law). It confirms a consistent interpretation of the texts. The judges simply recalled the applicable rules, emphasising that the Labour Court had erred in not counting the working days and in granting an excessively high holiday pay.

In short, the Court of Cassation said: yes, the part-time employee is entitled to 5 weeks of holidays like everyone else, but no, the holiday pay cannot exceed one-tenth or the salary he would have received by working. No more, no less.

What this changes for you — in practice

If you are an employer, this decision requires you to check how you calculate the paid holidays of your part-time employees. Imagine an employee who works two days a week in a hotel in Anglet. You must grant him 30 working days of holidays per year (i.e., 5 weeks). When he takes a week of holiday, you must count 6 working days (Monday to Saturday), even if he only works two days that week. And for the holiday pay, you calculate 10% of the wages received from 1 June to 31 May, or the salary he would have received if he had worked during his holidays (if that amount is higher). However, if you pay him a holiday pay higher than one-tenth without justification, you risk a reassessment.

If you are a part-time employee, this decision protects you: you are entitled to the same 5 weeks of holidays as your full-time colleagues. But you cannot claim a holiday pay higher than the one-tenth rule or the salary you would have earned by working. For example, if you earn €12,000 over the year, your holiday pay will be €1,200 (one-tenth). If you take your holidays in August and you would have earned €1,500 by working that month, that amount will be paid to you.

undefined, I have encountered cases where employers, in good faith, calculated holidays based on days worked. The result: a part-time employee ended up with only 2 weeks of holidays instead of 5. The 2000 decision clarified matters, but errors persist. If you are in this situation, you must request additional holiday pay from your employer, relying on this case law.

Four tips to avoid this type of dispute

• Check the counting of holiday days: For a part-time employee, do not count only the days he would have worked. Count all working days (Monday to Saturday) from the first day he would have had to work until the day before the return. Use payroll software that automatically handles this rule.
• Calculate the holiday pay according to the one-tenth rule: Take the total remuneration received by the employee during the reference period (e.g., from 1 June to 31 May). Divide by 10. This is the base amount. Compare it with the salary he would have received if he had worked during the holiday period. Pay the higher amount.
• Do not confuse length and pay: The length of holidays is the same for everyone (30 working days). The holiday pay, however, is proportional to the remuneration received. Do not reduce the length on the grounds that the employee works fewer hours.
• Document your calculations: Keep a written record of the calculation method used. In the event of an inspection by the URSSAF (social security collection agency) or a dispute with an employee, you will be able to justify your good faith.

Further detail: related case law and developments

This 2000 decision is part of a consistent line of the Court of Cassation. Already in 1998, in a judgment of 17 December (No. 96-44.844), the Court had affirmed that part-time employees are entitled to a holiday of the same length as full-time employees. More recently, in 2019, the Court of Cassation recalled that this rule also applies to employees on fixed-term contracts (CDD) (Cass. soc., 26 June 2019, No. 17-28.429).

The trend of the courts is therefore clear: no discrimination between part-time and full-time for the length of holidays. However, for the holiday pay, the one-tenth rule is strict. Judges are vigilant that employees are not overcompensated, which could create inequality with full-time employees.

For the future, this case law remains relevant. The Labour Code has been amended since 2000 (notably with the 2008 law on working time), but the principles laid down by the Court of Cassation are still in force. Employers must therefore incorporate these rules into their management of paid holidays.

In practice: what to do

FAQ:

• Is a part-time employee entitled to 5 weeks of holidays? Yes, the length is identical, regardless of the number of hours worked.
• How to calculate holiday pay for a part-time employee? Take 10% of the total remuneration received during the reference period. If the salary he would have received by working during the holidays is higher, pay that amount.
• Can I reduce the length of holidays if my employee works fewer days? No, that is prohibited. The length is fixed in working days, not in days worked.
• What if I have already paid a holiday pay that is too high? You cannot reclaim the overpayment from the employee, but you can adjust for the future.
• Can a part-time employee take his holidays in business days? Yes, but the counting must be equivalent: 5 weeks = 25 business days (if the company works Monday to Friday).

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