Splitting of Paid Leave: The Express Favorable Opinion of the Staff Delegates

You are the owner of a small business in Mulhouse, and every summer you close your doors for three weeks for your team of five employees' leave. This year, however, you would like to stagger the departures: two employees in July, two in August, one in September. Can I impose this split without the agreement of my staff delegates? The question is crucial, because a poorly handled refusal can cost you dearly.

In Kingersheim, a company wanted to split the paid leave of its employees during the annual closure of the establishment. It presented its project at a meeting of the staff delegates. But the report did not mention any express opinion from them. Result: the court of appeal ruled the decision invalid, and the Court of Cassation confirmed this.

This decision of 29 June 2011 (No 09-70.688) reminds us of a simple but often forgotten rule: the favorable opinion of the staff delegates must be express. No silence implying acceptance. No vague report. A real vote, a real mention. Let us analyse this case and its consequences for you.

The facts: a story that happens every day

The story begins in a company in Mulhouse, employing about fifteen employees. Each year, the company closes its doors during the summer period, and leave is taken in one block. But in 2006, the employer, keen to optimise activity, decides to split the leave: some employees will go in July, others in August, and one last in September. To do this, he calls a meeting of the staff delegates on 30 May 2006.

During this meeting, the employer presents his project. The official report merely states that "the leave period is fixed subject to compliance with a one-week notice period and only one person on leave per letter". There is no mention of a favourable or unfavourable opinion from the delegates. Yet Article L. 3141-20 of the Labour Code (now codified as Article L. 3141-23) requires that splitting, when accompanying a closure of the establishment, can only be carried out with the favorable opinion of the staff delegates.

On 20 September 2006, the employer notifies his decision to split by letter to one of the employees, who contests it. The dispute goes before the industrial tribunal of Mulhouse, then before the court of appeal of Colmar. The court of appeal rules in favour of the employee: the favorable opinion not having been given expressly, the decision is invalid. The employer appeals to the Court of Cassation, arguing that the mere fact of having raised the subject at the meeting and having received no opposition would amount to agreement. The Court of Cassation dismisses his appeal: the favorable opinion must be express, i.e. clearly formulated, and cannot be inferred from silence or an imprecise report.

The reasoning of the court — broken down

The heart of the dispute concerns the interpretation of Article L. 3141-20 of the Labour Code (in its version then in force). This text provides: "When the leave is accompanied by the closure of the establishment, the splitting may be carried out by the employer on the favorable opinion of the staff delegates." The term favorable opinion means that the employer cannot decide alone: he must obtain the express agreement of the staff delegates. The question was: can a simple meeting report, without a vote or mention of an opinion, constitute this agreement?

The Court of Cassation, in its judgment of 29 June 2011, answers in the negative. It states that "the favorable opinion required by this text means an express opinion". In other words, no tacit agreement is possible. The trial judges (the court of appeal) had noted that the report of the meeting of 30 May 2006 did not contain the express opinion of the delegates. Therefore, the splitting decision was invalid, and the employer could not impose it on the employee.

The company argued that the split was justified by the organisation of the company and that the delegates, by not opposing it, had given their implicit agreement. But the Court of Cassation did not follow this: labour law protects employees against unilateral decisions by the employer, especially when they affect paid leave, a fundamental right. The requirement of an express opinion ensures that the employee representatives have actually debated and consented. In this case, nothing proved that they had been formally consulted.

This decision is part of a consistent case law: the protective formalities for employees must be strictly observed. It reminds us that the employer cannot circumvent the rules by invoking a pseudo-acquiescence. For real estate professionals and business owners, this is a warning: in your meetings with delegates, hold a vote, record opinions, and keep evidence.

What this changes for you — concretely

Are you the owner of an SME in Kingersheim? Or the manager of a company in Mulhouse? This decision directly concerns you if you close your establishment during the summer leave and wish to split the departures.

For the employer: before notifying a split, you must obtain the express favorable opinion of the staff delegates. This means: organise a meeting, put the split on the agenda, hold a vote (show of hands or secret ballot), and clearly state the result in the minutes. Example: "The staff delegates, meeting on 15 March 2024, give their favorable opinion to the splitting of leave according to the proposed schedule." Without this, an employee can challenge the decision and obtain damages.

For the employee: if your employer imposes a split on you without the express opinion of the delegates, you can refuse. Refer the matter to the industrial tribunal within two years of notification. You could obtain the annulment of the decision and damages for prejudice (for example, additional childcare costs or loss of income).

For real estate professionals (agents, notaries): you advise companies that rent commercial premises. The question of leave can impact the organisation of works or leases. Remind them of this rule during renegotiations.

Let's take a concrete example: in Mulhouse, a company of 10 employees closes for three weeks in August. The employer unilaterally decides to send 4 employees in July, 4 in August, 2 in September. The delegates have not given an express opinion. An employee contests and wins: he obtains €1,500 in damages (about €500 per week of split leave). Multiply by the number of employees concerned, the bill can be heavy.

Four tips to avoid this type of dispute

• Organise a dedicated meeting: do not mix the splitting of leave with other subjects. Summon the staff delegates specifically for this item, with a clear agenda. This avoids ambiguities.
• Hold a vote and record it: after discussion, proceed to a vote (in favour, against, abstention). Write the exact result in the minutes: "The delegates give their favorable opinion by 3 votes for, 2 against." A simple narrative report is not enough.
• Keep written evidence: keep the summons, the signed minutes, and any document attesting to the express opinion. In case of a dispute, this is your shield. Digitise and archive.
• Respect the notice period: Article L. 3141-20 also imposes a notice period (generally one month before the start of leave). Even with a favorable opinion, if you notify too late, the split can be contested.

Further insight: related case law and developments

This decision is not isolated. In a judgment of 13 March 2013 (No 11-28.896), the Court of Cassation ruled that the favorable opinion of the staff delegates must be given before the employer's decision, and not afterwards. Another case (Soc., 9 July 2008, No 07-42.420) had already specified that the split could not be imposed without this opinion, even in the case of a collective agreement.

The trend is clear: judges are very strict on the protective formalities for employees. They consider that paid leave is a constitutional right, and that any derogation (such as splitting during a closure) must be regulated. Since 2011, no reversal has occurred. On the contrary, the 2016 Labour Law strengthened the powers of the staff delegates (now the Social and Economic Committee).

For the future, expect courts to require even more evidence. With digitalisation, a simple email may suffice, but it must be express: "We approve the proposed split." Not "no opposition".

In practice: what to do

Checklist for the employer:

1. Check whether the establishment closes during leave (unilateral decision or custom).
2. Summon the staff delegates (or the Social and Economic Committee) to a meeting with a specific agenda.
3. Present the splitting project (dates, number of employees concerned).
4. Obtain an express vote (in favour/against) and record it in the minutes.
5. Notify the decision to employees at least one month before the start of leave.
6. Keep all documents (summons, minutes, notification) for 5 years.

FAQ:

Can I split leave without a favorable opinion if the delegates do not oppose it? No. The opinion must be express. Silence does not amount to agreement.

What if I have no staff delegates? In companies with fewer than 11 employees, there is no obligation to have delegates. In this case, the employer can split freely, unless a collective agreement or sectoral agreement provides otherwise.

What are the risks of non-compliance? The employee can refuse the split and refer the matter to the industrial tribunal. You risk the annulment of the decision and damages (€500 to €2,000 per employee depending on the case).

Can I regularise afterwards? Yes, if you convene a new meeting and obtain an express favorable opinion before the end of the leave. But if the employee has already suffered harm, he may still claim damages.

Is splitting possible without closure? Yes, but then Article L. 3141-20 does not apply. The employer can propose a split, but the employee can refuse (unless a collective agreement provides otherwise).

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 →