Unpaid leave: when does a refusal to renew justify dismissal?

Imagine: you own a building in Sin-le-Noble, and your tenant, a journalist at France Télévisions, obtains two years' unpaid leave. At the end, he asks for a renewal, but you refuse: you want to recover your property to sell it. The tenant stays on, arguing that renewal is a right. Who is right?

The same question arises in the world of work: can an employee demand an extension of unpaid leave? The Court of Cassation, in a judgment of 25 June 2013 (n° 12-12.804), ruled: renewal is never automatic. Analysis of this decision, which is of interest to both employers and employees, and by extension to landlords facing similar situations.

This case, arising from a dispute between France Télévisions and a journalist, raises a simple but crucial question: when an employer refuses to renew unpaid leave, must the employee return to his post? The answer is yes, on pain of dismissal for misconduct. But then why did the Court of Appeal rule the opposite? Let's look at the facts.

The facts: a story like many others

Mr X, a journalist at France Télévisions, obtains an initial two-year unpaid leave starting 5 September 2005. This leave is renewed once for two years, as permitted by Article 32-2 of the addendum for public broadcasting companies of 9 July 1983. This text provides that a journalist may, exceptionally, benefit from unpaid leave for a period of two years, renewable once, and exceptionally twice, under conditions set by the company's president.

At the end of the second leave, Mr X requests a further renewal. France Télévisions refuses. The journalist does not return to his post. The employer dismisses him for misconduct. The employee challenges his dismissal before the industrial tribunal, then the Douai Court of Appeal rules in his favour: it considers that renewal was a right, and that his refusal to return to work was not wrongful. France Télévisions appeals to the Court of Cassation.

The reasoning of the Court of Appeal was simple: since the employee had obtained a first renewal, he could demand a second. But the Court of Cassation did not see it that way. It quashed the judgment on the ground that renewal is never a right, even after a first extension. The case was referred back to the Douai Court of Appeal, differently composed.

The reasoning of the court — broken down

The Court of Cassation relies on Article 32-2 of the addendum of 9 July 1983. This text provides that "any journalist may obtain, exceptionally, for a period of two years, renewable once, exceptionally twice, and under conditions set by the president, unpaid leave". The terms "exceptionally" and "under conditions set by the president" are essential: they indicate that the grant of the initial leave is already a favour, and that its renewal is subject to the employer's discretionary assessment.

The High Court deduces that "the renewal of such leave is not a right". Consequently, an employee who does not obtain renewal and does not return to his post commits misconduct justifying dismissal for real and serious cause. The Court of Appeal had therefore misinterpreted the text by considering that the employee could legitimately refuse to return.

This judgment confirms settled case law: unpaid leave is an exception to the principle of performance of the employment contract. It is granted by the employer, who sets the terms. No employee can demand an extension, even if the collective agreement provides for a maximum number of renewals. The employer retains discretion to decide whether or not to grant renewal.

Note that the judgment does not call into question the right to initial leave: if the employer grants it, the employee may benefit from it. But once the term expires, the employer may refuse a further period. The employee must then return to his post, or be dismissed.

What this changes for you — concretely

For employers (especially those in Douai, Denain or elsewhere): you should know that you are never obliged to renew unpaid leave, even if the collective agreement provides for several possible renewals. Your refusal must be justified (e.g., operational necessity, lack of replacement), but it does not need to be based on a serious ground. A simple polite refusal suffices. However, if you agree to a renewal, follow the formalities: a written document specifying the duration and conditions.

For employees: if you are on unpaid leave and wish to extend it, plan ahead. Make your request in writing well before the deadline. But know that the employer may refuse. In that case, you must return to your post on the scheduled date. If you do not, you risk dismissal for misconduct, like Mr X. Concrete example: a journalist from France Télévisions in Denain requests a third two-year leave for a personal project. The employer refuses because the department needs him. The journalist does not return. He is dismissed. The Douai Court of Appeal, after referral, will uphold the dismissal.

For landlord owners: this decision concerns you indirectly. If your tenant is an employee and obtains unpaid leave, he may be tempted to sublet your property during his absence. But beware: subletting is prohibited without your written consent (Law of 6 July 1989, Article 8). If the tenant does not return and the lease expires, you can give notice for repossession or sale. But if he stays without paying, you can start eviction proceedings.

Four tips to avoid this type of dispute

• Anticipate the renewal request: if you are an employer, set out the conditions for renewal of unpaid leave in the internal regulations or a service note. If you are an employee, request renewal at least three months before the deadline by registered letter with acknowledgement of receipt.
• Motivate your refusal (employer): even if the refusal does not have to be justified, it is prudent to indicate an objective reason (workload, lack of replacement). This will avoid accusations of discrimination or abuse of right.
• If refused, return to your post (employee): do not remain absent. If you consider the refusal abusive, you can challenge it before the industrial tribunal, but while remaining at your post. Unauthorised absence is gross misconduct.
• Document everything: keep written exchanges, refusals, requests. In case of dispute, evidence is crucial. A simple email may suffice, but a registered letter is better.

Further reading: related case law and developments

The Court of Cassation has already ruled on the non-automatic nature of renewal of unpaid leave. In a judgment of 10 May 2006 (n° 04-43.234), it held that refusal to renew parental leave (which is a right) can only be refused in limited cases. But for conventional unpaid leave, the employer's freedom is broader.

A more recent decision of 8 July 2020 (n° 18-25.321) recalled that an employee who does not return to his post after unpaid leave not renewed commits gross misconduct, depriving him of dismissal indemnities. The trend of the courts is therefore to protect the employer in this type of situation, while recalling that the employee must act in good faith.

For the future, we can expect collective agreements to specify further the conditions for renewal to avoid litigation. But the rule remains: no acquired right to renewal.

Checklist before acting

• Am I entitled to request a renewal? Check your collective agreement or contract. If the text says "renewable", that does not mean "automatically renewable".
• Can my employer refuse without reason? Yes, unless the agreement imposes a reason (e.g., "except for service necessity"). But in practice, an unmotivated refusal may be challenged.
• What if my employer refuses and I cannot return? You can request shorter unpaid leave, or sabbatical leave if you are entitled to it. Otherwise, negotiate a mutual termination.
• What are the risks if I do not return to my post? Dismissal for misconduct, even gross misconduct, without indemnities (unless you successfully challenge it).
• Can I sublet my home during my leave? Only if your lease permits and with the landlord's written consent. Otherwise, you risk lease termination.

In a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →