Seniority and Sick Leave: The Bonus Cannot Be Reduced (Cass. 2018)

In Andrézieux-Bouthéon, in the Loire department, a hairdresser employed for nearly ten years saw her seniority bonus reduced because she was off sick for several months. Like her, thousands of hairdressing employees are unaware that their collective agreement protects their seniority even in the event of absence. A question gnaws at many salon owners: can sick leave really be deducted from the calculation of seniority? The answer is no, and the French Supreme Court confirmed this on 28 June 2018.

The facts: a story that happens every day

Mrs Y. works as a hairdresser in a salon owned by Mr X, a manager in Montbrison. After several years of service, she benefits from a seniority bonus provided for by Appendix No. 12 of the National Collective Agreement for Hairdressing. But in 2012, following several months of sick leave, Mr X decides not to take this period into account when calculating the seniority required for the bonus (5 full and consecutive years in the same establishment). He considers that the absence interrupts the required continuity.

Mrs Y. challenges this: she brings the case before the Saint-Étienne Employment Tribunal (conseil de prud'hommes), which rules in her favour. Mr X appeals. The Lyon Court of Appeal upholds the judgment. The case goes up to the French Supreme Court, which dismisses the manager's appeal. The dispute concerns the interpretation of the phrase: "seniority means a number of full and consecutive years in the same establishment". Should periods of suspension of the contract (illness, unpaid leave) be deducted?

The court's reasoning — broken down

The French Supreme Court relies on Article 1.8 of Appendix No. 12. It recalls that the collective agreement itself defines seniority as full and consecutive years in the same establishment. But it adds a general principle: periods of suspension of the employment contract (such as illness) do not interrupt seniority, unless there is an express provision to the contrary. Seniority means continuity of the contractual relationship, not physical presence.

The judges analyse the wording of the agreement: nowhere does it say that sick leave must be deducted. On the contrary, the phrase "full and consecutive years" aims to avoid counting voluntary absences (such as extended unpaid leave). But illness is involuntary. The court rejects Mr X's argument that continuity is broken by absence. This is a confirmation of consistent case law: since a 2004 decision, the French Supreme Court has considered that seniority is calculated in calendar time, unless the text states otherwise.

The reasoning is simple: if the agreement had intended to exclude illness, it would have said so. Since it does not, the employee retains their seniority. The judges emphasise the protective purpose of the seniority bonus, which rewards loyalty to the company, not actual presence.

What this changes for you — concretely

For hairdressing employees: you can accumulate your seniority bonus even after sick leave. If your employer reduces it, you can claim back pay. Example: in Montbrison, a hairdresser with 7 years' seniority (including 6 months of sick leave) must receive the bonus corresponding to 7 years, not 6.5 years.

For hairdressing salon employers: you must check your calculation method. If you deduct sick leave, you risk litigation and back pay for the last 3 years (limitation period). It is better to regularise immediately. The decision also applies to other collective agreements that use the same wording.

For salon owners (often managers): beware of internal clauses that attempt to circumvent this rule. They would be considered abusive. If you are in this situation, you must recalculate your employees' seniority including periods of suspension.

Four tips to avoid this type of dispute

• Consult the applicable collective agreement: check the exact wording on seniority. If it does not specify that illness interrupts seniority, apply the rule of continuity.
• Calculate seniority in calendar years: add up all periods during which the employment contract exists, even if suspended. A monthly tracking table will prevent errors.
• Train your payroll manager: a misinterpretation can be costly. If in doubt, seek advice from a lawyer specialising in employment law.
• Include a clear clause in the employment contract: if you wish to exclude certain absences, do so expressly and in accordance with the collective agreement. But know that illness cannot be excluded without a contractual provision.

Further details: related case law and developments

This decision is part of a protective trend by the French Supreme Court. Already in 2004 (decision No. 02-45.179), it had ruled that strike periods do not interrupt seniority. In 2012 (No. 10-28.244), it extended this principle to parental leave. Here, it confirms it for illness.

Conversely, some collective agreements expressly provide that only periods of actual work count. For example, the hotel-café-restaurant agreement excludes sick leave of more than one year. But in the absence of a clause, the rule is continuity. Courts are increasingly vigilant about protecting employees' rights, especially in precarious sectors like hairdressing.

For the future, we can expect the French Supreme Court to extend this reasoning to other seniority-related bonuses (holiday bonus, etc.). Employers must anticipate.

What you absolutely need to remember

FAQ

• Does sick leave interrupt seniority for the bonus? No, unless there is a very clear contrary provision in the collective agreement. The duration of the illness counts towards seniority.
• Can I claim a bonus back-pay if my employer deducted my sick leave? Yes, within the 3-year limitation period. Gather your payslips and employment contract.
• Does this rule apply to all collective agreements? No, each agreement may have its own rules. Check yours.
• What should I do if my employer refuses to apply this decision? Bring the case before the employment tribunal. You can also request mediation.

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 →