Paid Leave: Can the Employer Split the 5th Week Without Agreement?

Imagine: you work in Collioure, in a small hotel on the Côte Vermeille. Your employer tells you that your fifth week of paid leave will be split into two periods of one week each, without asking your opinion. You wonder: does he have the right to impose this splitting? And if so, can you criminally sanction him?

This question, which may seem trivial, was decided by the Court of Cassation in a judgment of 25 February 1992. And the answer is not what many expect: the employer can split the fifth week without incurring criminal sanctions, because the law does not prohibit it.

But be careful: this does not mean that everything is permitted. Labour law distinguishes between the main leave (24 working days) and the fifth week (6 days). And the rules are not the same. Analysis of a decision which, thirty years later, continues to fuel debates between employees and employers.

The facts: a story that happens every day

Mr X, an employee in a company in Saint-Cyprien, has his fifth week of paid leave split by his employer against his will. Dissatisfied, he brings the matter before the courts, considering that this unilateral decision violates the provisions of Article L. 223-8 of the Labour Code (now codified in Article L. 3141-17). This article provides that the main leave of 24 working days may be split with the employee's agreement, and that the fifth week (the additional 6 days) cannot be split. But is the text so clear?

The employee also invokes Article R. 262-6 of the Labour Code (now R. 3141-1), which criminally sanctions non-compliance with the rules relating to paid leave. For him, the imposed splitting of the fifth week constitutes a criminal offence.

The case goes up to the Court of Cassation, which examines the employee's appeal against a judgment of the Montpellier Court of Appeal. The debate focuses on the interpretation of Article L. 223-8: should we read that the fifth week can never be split, or only that the employer cannot impose it without agreement? And above all, is the violation of this rule criminally punishable?

The reasoning of the court — dissected

The Court of Cassation will decide in a surprising way. It begins by recalling that Article L. 223-8 of the Labour Code (in its version then in force) provides that the main leave of 24 working days may be split with the employee's consent. It infers a contrario that the additional 6 days' leave (the fifth week) cannot be split. So far, nothing surprising.

But that's where the problem lies: the Court adds that this prohibition on splitting the fifth week does not result from the law explicitly. Indeed, the text does not say 'the fifth week cannot be split'. It simply says that splitting of the main leave is possible with agreement. The prohibition on splitting the fifth week is only a deduction, not a clearly stated rule.

Now, for a criminal offence to be established, the law must be precise and foreseeable — this is the principle of legality of offences and penalties (Article 111-3 of the Criminal Code). The Court of Cassation therefore considers that Article R. 262-6, which punishes violation of the provisions relating to leave, cannot apply to a prohibition that is not formally written in the law. Consequently, the unilateral splitting of the fifth week is not criminally punishable.

In summary: the employer does not have the right to impose the splitting of the fifth week (because the text implicitly prohibits it), but if he does, he incurs no criminal sanction. A subtlety that is sure to surprise!

What this changes for you — concretely

For employees: if your employer splits your fifth week without your agreement, you cannot file a criminal complaint. However, you can refer the matter to the industrial tribunal (conseil de prud'hommes) to have the breach of your rights recognised and claim damages (financial compensation). For example, an employee in Saint-Cyprien who has a split imposed on him could obtain €500 in damages for the harm suffered.

For employers: you can split the fifth week without fear of criminal prosecution, but you run the risk of industrial tribunal litigation. It is better to obtain the employee's written agreement, or failing that, to justify an overriding necessity (seasonality, closure of the company, etc.).

For real estate professionals (agents, developers): if you employ staff, be vigilant. Paid leave is often a source of conflict. Favour negotiation and transparency.

Four tips to avoid this type of dispute

• Obtain written agreement: for any splitting of leave, have the employee sign an addendum or exchange emails specifying the dates and duration of the split leave.
• Respect the main leave: the 24 working days (i.e. 4 weeks) must be taken continuously, unless the employee agrees otherwise. The fifth week may be split, but it is better to do so with the employee's consent.
• Anticipate closure periods: if your company closes for holidays, set the dates well in advance and inform employees in writing.
• Consult a lawyer if in doubt: each situation is unique. Personalised legal advice can save you years of proceedings.

Further analysis: related case law and developments

This 1992 judgment has been confirmed subsequently. For example, the Court of Cassation held in a judgment of 13 November 2008 (No. 07-42.057) that splitting the fifth week did not give rise to additional days of leave for splitting (unlike splitting the main leave). This position is consistent.

However, it should be noted that since the law of 11 May 2016, the Labour Code has been rewritten: Article L. 3141-17 takes up the same logic, but specifies that splitting the main leave of 24 days is possible with the employee's agreement, and that the fifth week cannot be split. The wording is clearer, but the case law has not changed: the absence of criminal sanction remains.

Summary and next steps

FAQ:

Q: Can my employer force me to take my fifth week in two parts?
A: No, because the law prohibits splitting the fifth week. But if he does, you cannot file a criminal complaint. You must refer the matter to the industrial tribunal.

Q: What are my remedies if my employer splits my fifth week without my agreement?
A: You can claim damages before the industrial tribunal. Keep all evidence (schedules, emails).

Q: Can the employer split the main leave of 24 days?
A: Yes, but only with the employee's written agreement. Without agreement, the splitting is illegal.

Q: Is there a penalty for the employer who splits the fifth week?
A: No criminal penalty, but possible civil liability (damages).

Q: Can I insist on taking my fifth week continuously?
A: Yes, that is your right. If the employer refuses, you can challenge it.

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 →