Fixed-day scheme and public holidays: the Court of Cassation overturns the Court of Appeal

Imagine a sales executive in Évry, employed by Crédit Agricole, working under a fixed-day scheme (a method of calculating working time where the employee is paid for a number of days worked per year, without fixed hours). He takes a rest day acquired through a collective agreement on a public holiday. Management refuses. The employee takes the matter to court. The Court of Appeal rules in his favour, holding that rest days cannot be positioned on a public holiday. But the Court of Cassation quashes this judgment. Why? Because the Court of Appeal did not verify whether the employee had actually complied with the cap of 206 working days per year, while benefiting from his weekly rest, paid leave and the 13 public holidays observed by the company. This technical decision has concrete implications for all employees on a fixed-day scheme and their employers.

The facts: an everyday story

Mr X, an employee of Crédit Agricole in Bobigny, benefits from a fixed-day agreement (a contract that sets a number of days worked per year, usually 218 days, with additional rest days called RTT). The applicable collective agreement in the company provides that employees on a fixed-day scheme must work a maximum of 206 days per year, after deducting paid leave (25 days), weekly rest (approximately 104 days) and public holidays (13 days). In 2012, Mr X takes an RTT rest day on a public holiday. His employer refuses, arguing that public holidays must be observed as non-working days and that RTT days cannot replace them. Mr X brings the case before the employment tribunal (the competent court for individual labour disputes) in Évry, which dismisses his claim. He appeals. The Paris Court of Appeal rules in his favour, holding that the collective agreement prohibits positioning rest days on a public holiday. The bank appeals to the Court of Cassation.

The reasoning of the court — dissected

The Court of Cassation overturns the Court of Appeal for lack of legal basis. In other words, the trial judges did not sufficiently justify their decision. They should have examined whether, in practice, the employee had worked more than 206 days per year. If the number of days worked was less than or equal to 206, then positioning an RTT day on a public holiday caused him no prejudice: he benefited from all his mandatory rest periods. Conversely, if this positioning led him to exceed 206 days, then the employer could refuse. The Court recalls that Annex 2 of the collective agreement (a document specifying the rules applicable to the fixed-day scheme) provides for a total of 56 rest days per year (25 days of paid leave + 13 public holidays + approximately 18 weekly rest days, depending on the calculation). But this total already includes public holidays. However, the Court of Appeal considered that RTT rest days could not be placed on a public holiday, without verifying whether the employee had benefited from all his entitlements. Note however: this decision does not mean that public holidays are ordinary days. It simply requires judges to verify compliance with the cap on working days before concluding a violation.

What few people know is that the fixed-day scheme is a derogatory regime (deviating from the common law) on working time. It is governed by Article L. 3121-58 of the Labour Code (provisions relating to annual fixed-day packages). The Court of Cassation here reminds that the judge must verify the workload and compliance with rest periods. undefined, I have encountered cases where employees on a fixed-day scheme were refused RTT days on public holidays, even though they actually worked more than 218 days per year. This decision supports their right to take these days, subject to the cap.

What this means for you — practically

For employees on a fixed-day scheme (managers, salespeople, etc.): You can position an RTT rest day on a public holiday, provided that this does not increase your number of working days beyond the legal or contractual cap. If your fixed-day agreement provides for 218 days per year, and you take an RTT on a public holiday, you do not work that day, but you must check that you do not exceed 218 actual working days in the year. Concrete example: a salesperson in Bobigny, with a 218-day fixed-day scheme, takes an RTT on 14 July (public holiday). If he has already worked 217 days before this date, this positioning is abusive. But if he has worked 200 days, no problem.

For employers: You cannot systematically refuse the positioning of an RTT on a public holiday. You must check the employee's working day counter. If the cap is respected, the collective agreement does not prohibit it. Conversely, if the cap is exceeded, you must refuse to avoid illegal overtime. Warning: the burden of proof partially falls on you: you must demonstrate that you have respected the mandatory rest periods.

For real estate professionals (agents, notaries, developers) employing managers on a fixed-day scheme: This decision concerns you if your employees are on a fixed-day scheme. Remember to update your contracts and monitor the number of days worked. Failure to do so may result in penalties for concealed employment.

Four tips to avoid this type of dispute

• Check your fixed-day agreement: Ensure it states the exact number of working days per year (often 218, sometimes 206 depending on agreements). If it is silent, the legal cap is 218 days.
• Keep an up-to-date working day counter: Use a tracking tool (spreadsheet, HR software) to know in real time the number of days actually worked. This helps avoid exceeding the cap.
• Draft a clear internal memo: Specify the rules for taking RTT days on public holidays, reminding of the cap. This avoids divergent interpretations.
• Consult a lawyer specialised in employment law: Before refusing a request for an RTT on a public holiday, seek legal advice. A mistake can be costly: back pay, damages.

Further reading: related case law and developments

This decision is part of a series of Court of Cassation rulings on the fixed-day scheme. In 2011, the Social Chamber had already reminded that the employer must guarantee compliance with mandatory rest periods (Cass. soc., 29 June 2011, No. 09-71.107). More recently, in 2023, the Court specified that the burden of proving compliance with rest periods lies with the employer (Cass. soc., 15 March 2023, No. 21-20.322). The trend is therefore towards increased scrutiny of fixed-day schemes. This 2015 decision is a milestone: it requires trial judges to concretely verify the number of days worked before ruling. In the future, courts are expected to require more rigorous monitoring from employers, on pain of nullity of the fixed-day agreement.

What you absolutely need to remember

FAQ

Can I take an RTT day on a public holiday? Yes, if this does not cause you to exceed the cap on working days provided for by your fixed-day scheme (usually 218 days per year). Check your counter.

Can my employer refuse? Yes, if the positioning results in exceeding the cap. But the employer must justify the refusal with an updated counter.

What if my employer refuses without valid reason? Apply to the employment tribunal by way of interim proceedings (urgent procedure) to obtain the positioning of the RTT. You can also claim damages for obstruction of your rights.

What are the time limits for action? You have 2 years from the refusal to bring the case before the employment tribunal. After this period, you are time-barred (you lose the right to act).

What is the cost of proceedings? Employment tribunals are free, but if you hire a lawyer, expect between €1,500 and €3,000 for a simple case. Legal aid may be available subject to means testing.

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 →