Carry-over of paid leave after illness: collective agreement more favourable than the Labour Code

Imagine: you are an employee in a medico-social establishment in Vénissieux, and your paid leave starts on Monday. Except that on Saturday, a stomach bug keeps you in bed. You inform your employer and provide a sick note. But when you return, you are told: 'Sorry, your leave is lost, you booked it, you took it.' Unfair, isn't it? This is exactly the dispute the Court of Cassation decided on 13 January 1998, in favour of the employee.

This decision, rendered under number 95-40.226, concerns an employee of an establishment for disabled persons, governed by the collective agreement of 15 March 1966. The issue? Whether an employee absent due to illness at the start of their leave can take it after their sick leave, or whether they lose it outright. The Labour Code is strict: leave must be taken within the year and cannot be carried over. But can a collective agreement derogate from this rule in a more favourable sense? Yes, answers the Court.

For property owners and real estate professionals, this case may seem far removed from your concerns. However, it illustrates a fundamental principle: a collective agreement or contract can always improve employees' rights, even if the law says otherwise. A useful reminder when you hire staff or manage commercial leases that include paid leave clauses.

The facts: a story like many that happen every day

Mr X is a special needs educator in an establishment for disabled persons in Bron, governed by the 1966 collective agreement. As every year, he books his annual paid leave from 1 to 30 August. But on 31 July, he contracts a viral infection and his doctor prescribes sick leave until 15 August. He informs his employer on the first day of his sick leave, stating that he wishes to take his leave from 16 August, once recovered.

Upon his return, management flatly refuses: 'Your leave was set for 1 August. You were ill, that's unfortunate, but you have lost it.' Mr X insists: he informed them, he has a medical certificate, and the collective agreement provides that an employee absent for a justified reason at the start of their leave can carry it over. The employer sticks to his position. Mr X then takes the case to the employment tribunal.

The tribunal rules in his favour, but the employer appeals. The Lyon Court of Appeal upholds the judgment: it orders the employer to grant Mr X his 30 days of paid leave after his sick leave, and awards him damages for the harm suffered. The employer appeals to the Court of Cassation. The Court of Cassation dismisses his appeal on 13 January 1998, thereby validating the favourable interpretation of the collective agreement.

Reasoning of the court — broken down

The Court of Cassation relies on Article L. 223-2 of the Labour Code (now L. 3141-1 et seq.), which lays down the principle that paid leave must be taken within the year and cannot be carried over. But it also recalls that collective agreements can derogate from this principle, provided they do so in a sense more favourable to employees. This is the principle of favour, a cornerstone of French labour law.

Article 22 of the 1966 collective agreement stipulates, without condition, that 'an employee who is absent for a justified reason on the date fixed as the start of annual paid leave shall benefit from the entirety of their leave as soon as their sick leave ends, if service requirements permit, or at a later date agreed between the parties if service needs so require.'

For the Court, this article is clear: it does not limit carry-over to additional leave (those exceeding the legal 5 weeks) but concerns the entire annual leave. It therefore derogates from the principle of non-carry-over in a favourable sense. The employer cannot invoke the legal rule to refuse carry-over, because the collective agreement has established a broader right. The judges emphasise that the agreement makes no reservation: carry-over is automatic, subject to service requirements. If the employer refuses, he must justify an impossibility of service.

This is a confirmation of earlier case law (Soc., 1 April 1992, n° 89-45.362): collective agreements can provide for carry-over of leave in case of illness, even if the law does not permit it. The Court of Cassation thus consolidates the protection of employees against loss of their rights.

What this means for you — concretely

If you are an employer in an establishment covered by a collective agreement that provides for carry-over of leave in case of illness (like the CCN 66), you must grant this carry-over. Refusing exposes you to damages. Example: an employee in Bron books leave from 1 to 30 June, falls ill on 31 May, sick leave until 15 June. On their return, you must grant the 30 days, either from 16 June to 15 July if service permits, or on an agreed date. If you refuse, the employee can take the case to the employment tribunal and obtain €2,000 to €5,000 in damages for loss of leave and moral prejudice.

If you are an employee, check your collective agreement. If it contains a clause similar to Article 22, you are entitled to carry-over. Keep your medical certificates and inform your employer in writing (by registered letter or email with read receipt). Do not let an unjustified loss of leave pass.

For landlord owners: this decision does not directly concern you, but it illustrates that employment contracts, like leases, can derogate from the law in a more favourable sense. Keep this in mind when drafting your clauses: if you grant an additional advantage (e.g., reduced notice period), it becomes an acquired right.

Four tips to avoid this type of dispute

• Check your collective agreement: Before refusing a carry-over of leave, check whether your collective agreement provides a more favourable clause. If so, apply it without discussion. If not, you can maintain the refusal, but beware: some non-signatory agreements may be extended.
• Formalise requests in writing: As an employee, as soon as you fall ill close to your leave, send an email or registered letter to your employer to inform them and request carry-over. Keep a record of the medical certificate.
• Justify refusal by service requirements: Employer, if you consider carry-over impossible, write a note explaining why (e.g., peak activity period, lack of other employees). An oral refusal or one without reason may be reclassified as misconduct.
• Anticipate leave: Plan leave taking into account the risk of illness. Propose possible carry-over periods when fixing leave, to avoid disputes. For example, include a clause in the internal regulations or service note.

Further reading: related case law and developments

The Court of Cassation had already ruled similarly in 1992 (Soc., 1 April 1992, n° 89-45.362): a collective agreement can provide for carry-over of leave in case of illness, even if the Labour Code prohibits carry-over. The 1998 judgment confirms this position, but specifying that the clause must be without reservation. If the agreement makes carry-over subject to the employer's agreement, it is not an automatic right.

Since then, the 2016 Labour Law (Macron ordinances) has relaxed carry-over of leave in case of illness: the employee can carry over their leave for 15 months after the sick leave (C. trav., art. L. 3141-19). But the 1998 case law remains relevant for more favourable collective agreements, particularly those providing for carry-over without time limit or without service condition.

The trend of the courts is to protect the employee against loss of their rights, especially when the collective agreement is clear. An employer who refuses carry-over must prove that the service did not allow granting leave on the requested date.

Summary and next steps

Key points to remember:

1. Check your collective agreement: if it provides for carry-over of leave in case of illness, you are entitled to it.
2. In case of refusal, take the case to the employment tribunal within 2 years of the refusal (limitation period for wage claims).
3. Damages for loss of leave can amount to several thousand euros, depending on seniority and prejudice.
4. Employer, do not refuse without a written reason: you risk a judgment against you.

Frequently asked questions:

• Can I carry over my leave if I fall ill on the very day it starts? Yes, if your collective agreement provides for it. Otherwise, since 2016, you can carry it over within 15 months.
• My employer refuses carry-over because the service is understaffed, what should I do? Ask him to justify in writing. If the reason is genuine, you will have to negotiate another date. Otherwise, challenge it.
• What is the time limit to act? 2 years from the refusal. After that period, you lose your right.
• Does this decision apply to all sectors? No, it is specific to the 1966 collective agreement, but the principle (more favourable agreement) applies to all.

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 →