Paid Leave and Sick Leave: A Major Advance for Employees with Work Accidents

Imagine: you are an employee in a company in Beaupréau-en-Mauges. One day, a work accident forces you to take several years off. When you return, your employer tells you that you are only entitled to a few days of paid leave, because only the first 12 months of leave are considered as actual work. Unfair, isn't it? Yet that was the rule until recently.

The question is simple: can an employee on long-term sick leave continue to accumulate paid leave? The answer, long negative in France, has just undergone a spectacular reversal.

On 13 September 2023, the Court of Cassation, aligning with European law, ruled that periods of leave due to a work accident or occupational disease, regardless of their duration, must be taken into account for the calculation of paid leave. A decision that changes the game for thousands of employees.

The facts: a story that happens every day

Mr Dupont, a maintenance technician in Chemillé-en-Anjou, suffered a serious work accident in 2018. His employment contract was suspended for 18 months. On his return, he requested payment of the paid leave accrued during this period. His employer refused, citing Article L. 3141-5 of the Labour Code, which limits the consideration of leave for work accidents to one year.

Mr Dupont brought the case before the Angers Employment Tribunal, which partially ruled in his favour: only the first 12 months were taken into account. He appealed, but the Court of Appeal upheld the judgment. Dissatisfied, he appealed to the Court of Cassation.

The Court of Cassation, after consulting the Court of Justice of the European Union, ruled in his favour. It partially set aside Article L. 3141-5 and directly applied European law, guaranteeing the right to annual paid leave to every worker, without any limit on the duration of leave.

The reasoning of the court — analysed

The Court of Cassation relies on European Directive 2003/88/EC, which requires Member States to guarantee all workers at least four weeks of annual paid leave. This Directive makes no distinction between employees who have worked and those who were on sick leave.

It also invokes Article 31(2) of the Charter of Fundamental Rights of the European Union, which enshrines the right to paid leave. However, French law, by limiting the period of leave taken into account to one year, is contrary to these texts.

The judges consider that the employer, even a private individual, must respect this fundamental right. They therefore disapply the contested part of Article L. 3141-5 of the Labour Code and apply Articles L. 3141-3 and L. 3141-9, which provide for the right to leave for all employees.

This is a reversal of case law: previously, the Court of Cassation considered that French law was compliant with European law. Now, it admits that it is not, and imposes a compliant interpretation, even if it means setting aside national law.

What this means for you — practically

For employees on leave due to a work accident or occupational disease: you are now entitled to paid leave for the entire duration of your leave, even beyond one year. Example: in Beaupréau-en-Mauges, an employee off work for 2 years can claim 5 weeks of leave per year (i.e. 10 weeks in total).

For employers, this means an additional financial burden. You must provision for leave for employees on long-term leave. If you are a private employer (e.g. childminder), you are also affected.

For real estate professionals (managing agents, landlords), if you employ staff, this decision requires you to revise your leave calculations.

Note: this decision only concerns work accidents and occupational diseases. Ordinary sick leave remains subject to the 12-month rule (subject to future developments).

Four tips to avoid this type of dispute

• Check your payslips: ensure that your paid leave is correctly calculated during your leave for work accidents. If there is an error, claim arrears within 3 years.
• For employers: update your payroll software to include leave of any duration. A provision for paid leave must be made from the start of the leave.
• Keep all medical documents: sick leave certificates, unfitness notices, etc. They are essential to prove the duration of the leave and the link to the work accident.
• In case of dispute, act quickly: the limitation period is 3 years from the date the leave becomes payable. Bring the case to the employment tribunal without delay.

Further reading: related case law and developments

As early as 2018, the CJEU had ruled (Case C-684/16) that the right to annual leave could not be conditional on a period of actual work. France resisted, but the Court of Cassation has finally given way.

A ruling of 8 November 2023 (No. 22-19.388) confirmed this position for ordinary sick leave, but with nuances. The trend is clear: European law prevails, and French limitations are falling one by one.

In the future, we can expect the Court of Cassation to extend this principle to non-occupational illnesses. Employers must prepare for full harmonisation.

In practice: what to do

FAQ: Your frequently asked questions

1. Can I claim leave for a period of leave before 2023? Yes, if the limitation period (3 years) has not expired. For example, for a leave in 2020, you can still act until 2023.

2. What if my employer refuses to pay my leave? Send a recorded delivery letter with acknowledgement of receipt, then bring the case to the employment tribunal.

3. Is the leave accrued during leave taxable? Yes, the paid leave indemnity is subject to income tax and social security contributions.

4. Can my employer dismiss me for claiming my rights? No, that would be discriminatory dismissal. You are protected.

5. Does this decision apply to civil servants? Yes, European law applies to all employers, public and private.

Are you 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 →