Splitting of Paid Leave: Right to Additional Days Even in Case of Longer Conventional Leave

Imagine: you are employed in a company in Plan-de-Cuques. Your collective agreement grants you 30 days of paid leave, i.e., more than the statutory 24 days (2.5 days per month of work). You decide to split your leave, i.e., take it in several instalments during the year. In principle, this splitting entitles you to additional leave days (for example, 2 days if you take your leave outside the statutory period from 1 May to 31 October). Your employer refuses them on the grounds that your longer conventional leave already compensates for these days. Who is right?

This question was decided by the Court of Cassation as early as 1981 in a decision that remains authoritative: the right to additional days arises from the mere fact of splitting, regardless of the length of the conventional leave. In other words, an employee cannot be deprived of these additional days solely on the pretext that they already benefit from a longer leave, unless a clause in the collective agreement or employment contract expressly provides otherwise.

But what does this actually change for employees in Septèmes-les-Vallons, Aix-en-Provence or Marseille? And for employers? Let us delve into the details of this decision and its practical implications.

The Facts: A Story Like Many Others

In this case, two employees of a company in the Marseille region had benefited from an annual paid leave longer than the statutory leave, thanks to their collective agreement. Despite their employer's refusal to authorise splitting, they extended the portion of their leave beyond the statutory length increased by the splitting leave. Consequently, they received a Bail commercial : l'engagement solidaire des copreneurs ne survit pas à la résiliation">disciplinary warning in February and April 1977 respectively. Contesting these sanctions, they brought the matter before the industrial tribunal, then the court of appeal, and finally the Court of Cassation.

Their argument: the splitting of their leave entitled them to additional days, and they were entitled to take them, even without prior authorisation from the employer. The employer, for its part, argued that since the conventional leave was already longer than the statutory leave, the employees were not entitled to additional days for splitting, and their unauthorised absence justified the warnings.

In its judgment of 2 December 1981, the Court of Cassation ruled in favour of the employees. It held that the right to additional leave days, provided for by Article L. 223-8 of the Labour Code (now codified in Article L. 3141-23), arises from the mere fact of splitting, and is acquired even when the company grants its employees a conventional leave longer than the statutory period, unless there is a derogating clause. In short, the warnings were annulled.

The Court's Reasoning — Explained

To understand this decision, we must refer to the text applicable at the time: Article L. 223-8 of the Labour Code (now L. 3141-23). This text provides that when the main leave is split, the employee is entitled to additional leave days for each additional portion, within certain limits. The aim is to encourage employees to take their leave during the statutory period (1 May to 31 October) and to compensate for the loss of rest due to splitting.

The employer argued that since the conventional leave was longer (e.g., 30 days instead of 24), the additional days were not due because the employee already benefited from greater rest. But the Court of Cassation rejected this argument: the right to additional days is an autonomous right, which is added to the main leave, regardless of its duration. It is not merged with the conventional leave. Only if an express clause in the collective agreement or employment contract excludes these additional days can the employer refuse them.

In other words, the judges applied a strict interpretation of the law: splitting gives rise to additional days, full stop. It does not matter if the leave is longer than the statutory minimum. Note, however, that this decision only concerns the splitting of the main leave (the first 4 weeks). For the 5th week, splitting does not give rise to additional days.

What few people know is that this case law has since been confirmed, notably in a judgment of 14 February 2001 (No. 98-46.402), which clarifies that splitting days are added to the conventional leave, unless a clause to the contrary exists. The trend of the courts is therefore consistent: protecting the employee's right to these additional days.

What This Means for You — in Practice

For employees: if you split your leave, you are entitled to additional days, even if your collective agreement grants you more than 24 days. For example, an employee in Septèmes-les-Vallons benefiting from 30 days of conventional leave who takes 18 days in summer and 12 days in winter (outside the statutory period) can claim 2 additional days (for splitting the 4th week). Your employer cannot refuse them on the grounds that you already have more leave. If you are in this situation, you should check your collective agreement: if it does not contain a derogating clause, you can demand these days.

For employers: be careful not to refuse these additional days without a contractual basis. An unjustified refusal can lead to back pay and damages. undefined, I have come across cases where the employer systematically refused splitting days, unaware of this case law. Result: orders to pay several hundred euros per employee.

For property professionals (this may seem unrelated, but leave impacts the management of tenants or building caretakers): if you employ staff, ensure compliance with these rules.

Four Tips to Avoid This Type of Dispute

• Check your collective agreement: read carefully the clauses relating to paid leave and splitting. If a derogating clause exists, it must be clear and precise. If in doubt, consult a lawyer.
• Inform your employees in writing: if you believe that additional days are not due, explain this to them in writing, relying on a contractual clause. This will avoid misunderstandings.
• Keep a record of splitting requests: any written exchange (email, letter) constitutes evidence in case of a dispute. An employee requesting splitting should do so in writing.
• Consult a lawyer lawyer: if in doubt about the interpretation of your collective agreement, a quick consultation can save you from costly litigation.

Further Reading: Related Case Law and Developments

The 1981 decision was confirmed by a Court of Cassation judgment of 14 February 2001 (No. 98-46.402): splitting days are due even in the case of a longer conventional leave, unless a clause to the contrary exists. More recently, the Court of Cassation reminded in a judgment of 23 September 2020 (No. 19-12.889) that splitting the main leave gives rise to additional days, and that the employer cannot impose splitting without the employee's consent. The trend is therefore towards protecting the employee's right. For the future, one can expect the courts to continue applying the law strictly, unless the legislature changes the texts.

Frequently Asked Questions

What is splitting of paid leave? It is taking the main leave (4 weeks) in several instalments during the year, for example 2 weeks in summer and 2 weeks in winter.

How many additional days for splitting? If you take a portion of at least 5 days outside the statutory period (1 May to 31 October), you are entitled to 2 additional days. If you take a portion of 3 to 5 days, you are entitled to 1 day.

Can I lose these days if my collective agreement offers more leave? No, unless the collective agreement or your employment contract contains an express clause excluding these additional days. Without such a clause, they are due.

What should I do if my employer refuses? Send a written request reminding them of the law and case law. If the refusal persists, bring the matter before the industrial tribunal within 5 years of the refusal.

Are these additional days paid? Yes, they are remunerated like ordinary leave days.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →