Compensatory Holiday Pay for Temporary Workers: Exclusion of Annual Bonuses (Cass. soc. 2018)

Imagine: you are a temporary worker in Béziers, on assignment with a logistics company. At the end of your contract, the temp agency pays you compensatory holiday pay (holidays you did not take). But how is it calculated? Should annual bonuses like the 13th month be included? This question has long divided the courts. In a judgment of 5 April 2018, the Cour de cassation ruled: annual bonuses paid for the full year (covering both work periods and holiday periods) do not have to be included in the calculation basis for compensatory holiday pay for temporary workers, unlike the end-of-mission allowance, which must be included. This decision clarifies the rules and can have a direct impact on the amount of your entitlements.

Whether you are a temporary employee, employer, or simply curious, this judgment concerns you. In Mauguio as elsewhere, temp agencies must apply this rule. Analysis.

The facts: a story that happens every day

Mr X, a temporary worker domiciled in Béziers, worked for several user companies through a temp agency. At the end of each assignment, the agency paid him compensatory holiday pay. But Mr X considered that this payment was undervalued: in his view, the agency should have included in its calculation basis the 13th and 14th month bonuses paid by the user companies. Indeed, these bonuses are paid for the full year, covering both worked periods and holiday periods. For Mr X, they should therefore logically be included in the calculation of compensatory holiday pay.

The temp agency refused, arguing that these bonuses were excluded from the holiday pay basis under general law (i.e. for permanent employees). The dispute was brought before the Montpellier employment tribunal, which found in favour of Mr X at first instance (interim relief). The agency appealed: the Montpellier Court of Appeal upheld the judgment. The agency then appealed to the Cour de cassation.

Before the Cour de cassation, two questions arose: should the end-of-mission allowance be included in the calculation basis for compensatory holiday pay? And should annual bonuses (13th, 14th month) likewise be included? The High Court would rule by distinguishing between the two.

The reasoning of the court — broken down

The Cour de cassation relies on Article L. 1251-19 of the Labour Code, which provides that the compensatory holiday pay due by the temporary employment company (the temp agency) is calculated according to the rules of general law. In other words, the calculation must follow the same principle as for a permanent employee: the total gross remuneration received during the reference period serves as the basis. But there is a specific feature for temporary workers: Article D. 3141-8 of the same Code requires the inclusion of the end-of-mission allowance in the calculation basis, because it is considered an element of remuneration linked to the assignment.

On the other hand, annual bonuses such as the 13th or 14th month are excluded from the holiday pay basis under general law. Why? Because these bonuses are paid for the full year, covering both work periods and holiday periods. Including them would amount to counting them twice: once in the basic salary, once in the compensatory holiday pay. The Cour de cassation recalls that the determination of total gross remuneration for temporary workers is not subject to any specific rule other than the inclusion of the end-of-mission allowance. Therefore, annual bonuses are not included.

Thus, the judgment of the Montpellier Court of Appeal is quashed: it was wrong to include the 13th and 14th month bonuses in the calculation. The decision is clear: the end-of-mission allowance counts, annual bonuses do not. This is a confirmation of existing law, not a reversal.

What this means for you — practically

For temporary workers: if you have received annual bonuses (13th, 14th month) from the user company, do not expect them to be integrated into your compensatory holiday pay. You cannot claim back payment on this basis. However, check that the end-of-mission allowance has been included in the basis: it is a right. For example, in Mauguio, if you have completed a 3-month assignment with an end-of-mission allowance of €1,000, this must be added to your salary to calculate your holiday pay.

For temp agencies and employers: this decision provides security. You can exclude annual bonuses from the holiday pay basis for temporary workers, without fear of reassessment. However, be sure to include the end-of-mission allowance. If you do not, you risk back pay and damages.

For user companies: you are not directly concerned, but know that the bonuses you pay to temporary workers do not increase the cost of holiday pay for the agency.

Four tips to avoid this type of dispute

• Check your payslips: if you are a temporary worker, compare the amount of compensatory holiday pay with the legal rule. The basis must include the end-of-mission allowance, but not annual bonuses.
• Keep all your assignment contracts: they state the amount of the end-of-mission allowance and any bonuses. In the event of a dispute, these documents are essential.
• Ask your agency: if in doubt, send a registered letter to your temp agency requesting details of the calculation. The employer has an obligation to inform.
• Consult a specialist lawyer: before taking legal action, a labour lawyer (such as Maître Zakine) can analyse your situation and assess your chances. A 30-minute consultation is often sufficient.

Further reading: related case law and developments

This judgment is part of a consistent line: the Cour de cassation had already ruled, in a judgment of 13 November 2014 (no. 13-21.892), that the end-of-mission allowance must be included in the holiday pay basis. The 2018 decision merely confirms and clarifies this principle by excluding annual bonuses. No reversal has occurred since. Courts now follow this rule uniformly. For the future, it is unlikely that the case law will evolve: the distinction between end-of-mission allowance (included) and annual bonuses (excluded) is firmly established. Temporary workers should therefore direct their claims on other grounds, such as failure to respect the minimum assignment duration or lack of medical examination.

Checklist before taking action

• Did I receive an end-of-mission allowance? If so, was it included in the calculation of my holiday pay?
• Did I receive annual bonuses (13th, 14th month)? If so, did the agency wrongly include them? This could be an error in my favour, but the agency can rectify it.
• What is the amount of my compensatory holiday pay? Calculate it yourself: (basic salary + end-of-mission allowance) × 10%. If the amount is lower, you can claim back pay.
• How long ago? The action for payment is time-barred after 3 years (Article L. 3245-1 of the Labour Code). If your assignments date back more than 3 years, you are out of time.
• Have I consulted a lawyer? Even if the law seems clear, a lawyer will check the specifics of your case (collective agreements, company agreements).

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 →