Notice Period Suspended by Annual Leave: When the Employer Sets the Dates Before Dismissal

Imagine: you are a landlord in Biscarrosse, you rent a furnished flat to an employee who works for a company in Parentis-en-Born. He gives his three months' notice, but during this period, he goes on annual leave that his employer had scheduled before the dismissal. Is the notice period suspended? This is exactly the question the Court of Cassation decided in a judgment of 14 November 1990.

This little-known decision has important consequences for employers and employees. It reminds us that employment law protects the employee against manoeuvres that would reduce their effective notice period. But what does this change exactly? Put simply: if the employer set the leave dates before dismissing, this leave does not eat into the notice period. The notice period (the period between the announcement of dismissal and the end of the contract) is suspended, and the employee benefits from their full notice after their holiday.

In this article, I will break down this decision, explain the judges' reasoning, and give you practical advice to avoid disputes. Whether you are an employer, employee, or even a landlord facing a lease termination, these rules may concern you.

The Facts: A Story Like Any Other

Mr X, a sales representative for a company based in Mont-de-Marsan, was made redundant on 30 May 1986. In his dismissal letter, the employer stated: 'You are entitled to 3 months' notice, plus 4 weeks' paid holiday. Your notice will expire on 23 September.' But note: before the dismissal, the employer had already set Mr X's annual leave dates, which fell precisely during the notice period. The employee therefore took his leave as planned, then returned to finish his notice. However, the employer considered that the notice period had run during the leave, and that the contract had ended on the scheduled date.

Mr X brought a claim before the employment tribunal (the competent court for individual employment disputes) seeking payment for his unperformed notice. He argued that the notice period had been suspended by his leave, and that he should therefore receive compensation in lieu of notice (money in place of the unworked notice period). The employer, on the other hand, maintained that the notice period had run normally during the leave, because the leave had been set before the dismissal. The Court of Appeal (second instance court) ruled in favour of Mr X: it ordered the employer to pay the notice compensation. The employer appealed to the Court of Cassation (appeal for violation of law).

The Court of Cassation, in its judgment of 14 November 1990, dismissed the employer's appeal. It confirmed that the notice period is suspended by the employee's annual leave when the dates of that leave, falling during the notice period, were set by the employer before the dismissal. In short: the employer cannot take advantage of its own scheduling of leave to reduce the employee's effective notice period.

The Court's Reasoning — Explained

The Court of Cassation relies on the general principle of employment law that the notice period must be effective (actually worked or compensated). It notes that Article L. 122-6 of the Labour Code (now Articles L. 1234-1 et seq.) provides for a minimum notice period in case of dismissal. But it adds a crucial clarification: if the employer imposed the leave dates before the dismissal, that leave cannot be set off against the notice period. Why? Because the employee did not choose to take their holiday during the notice period; the employer set those dates by virtue of its management power. However, this power must not be used to circumvent the protective rules on notice.

In other words, the notice period is a period during which the employee is supposed to work or be paid not to work. If the employer sends them on leave, it cannot claim that the notice period still runs. The suspension of the notice period allows the employee to benefit from their right to leave without losing their notice. The employer must either postpone the leave until after the notice period, or extend the notice period accordingly.

What few people know is that this solution is consistent with previous case law. Already, in a judgment of 19 February 1982 (No. 80-41.695), the Court of Cassation had held that paid leave taken during the notice period does not reduce it if the employee was not free to set the dates. The 1990 judgment confirms and clarifies this rule. Conversely, if the employee chooses to take their leave during the notice period, it may be deducted (unless otherwise agreed).

In practice, the Court of Cassation ensures that the employer cannot 'empty' the notice period of its substance by imposing leave. This is a protection for the employee, but also a constraint for the employer, who must plan carefully.

What This Means for You — Practically

For the employer: If you dismiss an employee and have already set their annual leave before the dismissal notice, you must either postpone that leave until after the end of the notice period, or extend the notice period by the number of leave days. Warning: if you do not, you risk being ordered to pay compensation in lieu of notice (salary the employee would have received during the unperformed notice period) in addition to the leave already paid. For example, an employee paid €2,500 per month with 3 months' notice and 4 weeks' leave: the compensation could reach €7,500 (3 months' salary) if the notice is completely unperformed.

For the employee: If you are in this situation, you must check the timeline. Did the employer set your leave dates before the dismissal? If so, your notice period is suspended during that leave. You must therefore complete your notice after your holiday. If the employer refuses, you can claim compensation. In Parentis-en-Born, an employee of a local SME thus obtained 2 months' additional salary after proving that his leave had been imposed before his dismissal.

For the landlord: If your tenant is an employee and their notice period under the lease (e.g., 3 months) coincides with leave imposed by their employer, this does not directly affect your contract. But if the tenant loses their professional notice, they may have difficulty paying rent. Stay vigilant.

If you are in this situation, you must act quickly. The deadline to bring a claim before the employment tribunal is 12 months from the date of termination (for dismissal). Gather evidence: dismissal letter, leave dates set by the employer, payslips.

Four Tips to Avoid This Type of Dispute

• Plan dismissals outside imposed leave periods. If you are an employer, avoid dismissing an employee just before or during their annual leave that you have already scheduled. If not possible, arrange to postpone the leave until after the notice period.
• Draft the dismissal letter clearly. Expressly state that the notice period is suspended during leave set before the dismissal. For example: 'Your 3-month notice period is suspended during your annual leave from 1 to 28 August; it will resume on your return and expire on...' This avoids any ambiguity.
• Keep all documents. Employee, keep a record of the leave dates being set (email, internal memo, written agreement). Employer, archive approved leave schedules before the dismissal. In case of dispute, this evidence is crucial.
• Consult a lawyer before any termination. undefined, I have seen cases where the employer, through ignorance, had to pay substantial compensation. A preliminary consultation (€45 for 30 minutes with Maître Zakine) can save you much larger costs.

Further Reading: Related Case Law and Developments

This 1990 judgment is part of a protective line for the employee. Already in 1982, the Court of Cassation had held that paid leave taken during the notice period does not reduce its length if the dates were set by the employer (Cass. soc., 19 February 1982, No. 80-41.695). More recently, the Court extended this principle to other absences imposed by the employer, such as RTT days (judgment of 10 May 2012, No. 10-27.468).

But note: if the employee freely chooses to take their leave during the notice period, it may be set off against the notice, unless a collective agreement (industry or company agreement) provides otherwise. The courts' tendency is therefore to check who initiated the dates. In practice, judges are strict: the employer must prove that the employee requested the leave.

For the future, this case law remains relevant. With the development of remote working and split leave, disputes over suspension of notice may increase. Employers must therefore be particularly vigilant in managing schedules.

Summary and Next Steps

FAQ:

• Is the notice period always suspended by leave? No, only if the employer set the leave dates before the dismissal. If the employee chooses them, they may be deducted.
• What if my employer refuses to suspend the notice period? Bring a claim before the employment tribunal within 12 months of termination. You can claim compensation in lieu of notice.
• Is unused paid leave lost? No, it must be paid in the compensation for accrued leave, in addition to the notice period compensation.
• Does this rule apply to other absences (sickness, accident)? No, only annual leave imposed by the employer suspends the notice period. Sickness, for example, does not suspend notice except in special cases.

Checklist if you are an employee: 1) Check the date the leave was set. 2) Keep the evidence (email, schedule). 3) Inform your employer in writing that the notice period is suspended. 4) If refused, consult a lawyer.

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 →