Reduction of Working Time Days (RTT): Variable Part of Salary Must Be Maintained

Imagine: you are a sales representative in Montauban, and your employer grants you reduction of working time days (RTT). You take a day off, and on your payslip you notice that your sales bonus has been reduced. "Normal," you are told, "you didn't work that day." But is this really legal? This question, asked daily by thousands of employees, was answered by the French Supreme Court on 28 March 2018. And the answer is clear: the employee must suffer no loss of salary when taking an RTT day, unless a collective agreement provides otherwise. Variable bonuses linked to activity must be maintained. Analysis.

The Facts: A Story Like Many Others

Mr X, a sales representative in a company in Castelsarrasin, benefited from a flat-rate days arrangement with RTT days. His remuneration included a fixed part and a gross sales bonus, calculated on the basis of his monthly performance. When he took an RTT day, the employer reduced the amount of this bonus, pro rata to the number of days not worked. Mr X contested: according to him, the bonus must be fully maintained, because it is the counterpart of his activity, and RTT days are rest to which he is entitled without loss of salary.

The case was brought before the employment tribunal of Montauban, then before the Court of Appeal of Toulouse. The Court of Appeal ruled in favour of Mr X: the sales bonus, closely linked to the employee's activity, must be included in the basis for calculating the RTT indemnity. The employer appealed to the Supreme Court. The Supreme Court, in a judgment of 28 March 2018, dismissed the appeal and confirmed the Court of Appeal's decision. The employee must not suffer any loss of salary, unless a specific provision in the collective agreement provides otherwise.

The Reasoning of the Court — Explained

The Supreme Court relies on Article L. 3121-59 of the French Labour Code (formerly L. 212-9), which provides that hours of compensatory rest or reduction of working time must not entail any reduction in remuneration. In short, the employee must receive his usual salary as if he had worked. But how to define "usual salary"? The issue was whether the variable bonus, which fluctuates according to sales, must be paid in full for an RTT day, even though the employee did not make any sales on that day.

The judges consider that this bonus is the direct counterpart of the employee's activity and performance. It forms part of the remuneration just like the fixed salary. Therefore, its calculation cannot be reduced due to the taking of RTT. In other words, the employer must maintain the bonus at a level equivalent to the average received over a reference period, or use a reconstitution method. However, the Court specifies that this applies "unless a specific provision of the collective agreement provides otherwise". If the agreement provides for another method of maintenance, that provision applies. But in the absence of such provision, the principle of non-loss prevails.

What few people know is that this judgment confirms a consistent line of case law: variable remuneration linked to activity must be maintained during rest periods. This is a protection for the employee against misuse of the RTT scheme. undefined, I have come across cases where the employer tried to reduce bonuses by 1/22nd per day of absence, which is illegal for RTT (unless the agreement provides for it).

What This Means for You — Practically

For employees (sales representatives, flat-rate day managers): If you receive a variable bonus (bonus based on targets, commission, performance bonus) and your employer reduces it when you take an RTT day, you are entitled to claim back pay. For example, a sales representative in Montauban who takes 12 RTT days per year and loses an average of €200 in bonus per day could claim €2,400 per year, plus interest.

For employers: Check your collective agreement or employment contract. If no text provides for a specific method, you must maintain the variable remuneration. You can provide in an agreement for annual smoothing or a pro rata calculation, provided that this does not result in a loss for the employee. In practice, it is prudent to pay the bonus on the basis of the average of the last 12 months.

For property professionals (agents, notaries): This decision may affect your employees, but also yourself if you are an employee of an agency. Sales commissions are variable bonuses. Ensure that your payslips are compliant.

If you are in this situation, you must act quickly: the limitation period is 3 years (Article L. 3245-1 of the French Labour Code). Gather your payslips for the last 3 years and compare the amount of bonuses in months with and without RTT.

Four Tips to Avoid This Type of Dispute

• Check the collective agreement: Read your RTT agreement or industry-wide collective agreement carefully. If it provides for a method of calculating bonuses during RTT, it applies. Otherwise, the principle of non-loss applies.
• Provide for an amendment to the contract: For employers, anticipate by drafting a clause specifying that the variable bonus is maintained on the basis of an annual average. This secures both parties.
• Keep your payslips: Employees, keep your payslips for 5 years. In the event of a dispute, you will be able to prove the loss of salary.
• Consult a lawyer before contesting: A lawyer specialised in labour law (such as Maître Zakine, who also practices in Montauban and Castelsarrasin) can assess your chances and help you initiate employment tribunal proceedings.

Further Analysis: Related Case Law and Developments

This decision is part of a line of protective judgments. Already, in a judgment of 13 February 2013 (No. 11-25.793), the Supreme Court had ruled that bonuses linked to activity must be maintained during paid leave. More recently, a judgment of 23 September 2020 (No. 18-23.743) extended this principle to public holidays. The trend is therefore clear: any authorised absence (leave, RTT, public holidays) must not penalise the employee in terms of variable remuneration.

However, note: if the absence is not rest (illness, strike), the principle is different. The distinction is subtle. Courts are increasingly demanding transparency in calculation methods. For the future, we can expect the Supreme Court to clarify what constitutes a "specific provision" of the collective agreement: a simple reference to pro rata temporis might be deemed insufficient.

Checklist Before Taking Action

FAQ: 5 Practical Questions

1. Can my employer reduce my variable bonus if I take an RTT day? No, unless a collective agreement provides for a different method. In the absence of such provision, the bonus must be maintained.
2. What should I do if I notice a loss of salary? Gather your payslips (3 years), send a registered letter to your employer requesting back pay, and consult a lawyer if necessary.
3. What is the time limit to act? 3 years from the date the salary fell due (Article L. 3245-1 of the French Labour Code).
4. Can I claim damages? Yes, if you prove a separate loss (e.g., bad faith of the employer). But the main claim is for back pay.
5. Does this rule apply to all types of bonuses? Yes, as long as they are "closely linked to the employee's activity and performance". Bonuses based on seniority or a 13th month (not linked to activity) are not concerned.

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 →