Paid Leave During Sick Leave: A Victory for Employees

Marie, an employee at the Millau Social Security office, was on long-term sick leave from December 2013 to January 2016. During these two years, she continued to receive her full salary. Upon her return, her employer gave her a nasty surprise: her paid leave had been reduced in proportion to her absence. “How could I accumulate leave if I’m not working?” she was told. Yet European law and the collective agreement say otherwise. This decision by the Court of Cassation settles a debate that has plagued many employees.

Are you on sick leave and wondering if you are still accruing holiday days? Or are you an employer applying a reduction rule? This decision is for you. The high court reminds us of a fundamental principle: the right to rest is a human right, not a favour linked to the performance of work. And this right does not disappear when illness strikes.

In this case, the Court of Cassation ruled that the internal regulations of the collective agreement for social security bodies (Article XIV, paragraph 4) cannot reduce the paid leave of an employee whose salary was maintained during illness, as this contradicts EU Directive 2003/88/EC. In practice, this means that any contractual clause or company practice that limits the accrual of leave in case of illness is contrary to European law.

The Facts: A Story That Happens Every Day

Ms X, an agent at the primary health insurance fund of Aveyron, based in Millau, was on sick leave for a long-term condition (ALD) from 27 December 2013 to 24 January 2016. During this period, her employer maintained her salary at 100%, in accordance with Article 38 of the national collective agreement for staff of social security bodies. On her return, her employer calculated her paid leave entitlement based solely on actual working time, applying paragraph XIV, subparagraph 4, of the internal regulations annexed to the collective agreement. Result: Ms X did not accrue any leave during her absence.

Ms X brought the matter before the Rodez employment tribunal to contest this decision. She argued that, under EU Directive 2003/88/EC, every worker is entitled to at least four weeks of paid annual leave per year, and that this right cannot be subject to a condition of actual work. At first instance, she won her case. The employer appealed to the Nîmes Court of Appeal, which upheld the judgment. The case then went up to the Court of Cassation.

The twist? The Court of Cassation dismissed the employer’s appeal, thus validating the reasoning of the lower courts. It held that the period of sick leave with salary maintenance must be treated as actual working time for the calculation of paid leave. A short sentence that shifted the case law: “the period of sick leave does not lead to any reduction in the right to paid leave.”

The Court’s Reasoning — Explained

The Court of Cassation relied on two main texts. First, Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003, which provides that “Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks.” Second, Article 38 of the national collective agreement for social security bodies, which provides for salary maintenance in case of illness. The Court interpreted these texts in light of the case law of the Court of Justice of the European Union (CJEU), which has repeatedly affirmed that the right to paid annual leave is a particularly important principle of European social law.

The reasoning is as follows: the right to paid leave is a fundamental right, which cannot be conditional on actual presence at work. As soon as the employee is considered to be in a working situation (notably because their salary is maintained), they must continue to accrue leave rights. In this case, Ms X received her full salary: she was therefore in the same situation as an active employee. The internal regulations that excluded this period from the calculation of leave were therefore contrary to the directive.

The Court of Cassation specified that paragraph XIV, subparagraph 4, of the internal regulations does not apply to employees whose salary was maintained during illness and who fall within the scope of Article 38(d), subparagraph 4, of the collective agreement. In other words, the collective agreement itself, correctly interpreted, does not allow for a reduction of leave in this situation. So this is an interpretation consistent with European law, not a reversal of case law. The Court confirms a trend already begun in other decisions (notably regarding non-occupational illness).

The employer’s arguments? The employer argued that the internal regulations were clear and that French law (former Article L. 3141-5 of the Labour Code) only considered actual work as an accrual period. But the Court dismissed this argument by recalling the primacy of European law over national law.

What This Means for You — In Practice

For employees: If you are on sick leave (whatever the cause, occupational or not) and your salary is maintained (fully or partially), you continue to accrue paid leave. This applies to long-term absences as well as short absences, provided that the collective agreement or your contract provides for salary maintenance. Example: an employee in Villefranche-de-Rouergue, on sick leave for depression for 6 months with 90% salary maintenance, is entitled to 2.5 days of leave per month, i.e., 15 days accumulated during their absence. Their employer cannot refuse this.

For employers: You must review your practices. Any clause in your collective agreement, company agreement, or custom that would reduce leave in case of illness with salary maintenance is unlawful. You risk a back-pay claim covering several years. For example, if you applied this rule to 10 employees for 3 years, the total back-pay amount could exceed €50,000.

For property professionals: This decision may affect the employment contracts of building caretakers, concierges, or co-ownership employees. Check the clauses in your collective agreements (notably the building caretakers’ collective agreement): they must comply with European law.

If you are in this situation, you must act quickly: the limitation period for salary claims is 3 years (Article L. 3245-1 of the Labour Code). Do not wait to claim your rights.

Four Tips to Avoid This Type of Dispute

• Check your collective agreement: Read the clauses relating to paid leave and illness. If a clause reduces the accrual of leave in case of absence, it is probably contrary to European law. Have it amended through collective bargaining.
• Keep all your payslips: In case of a dispute, they will serve as proof of salary maintenance during the absence. Without proof, you will not be able to claim the leave.
• Send a registered letter to your employer: After a sick leave, request in writing a detailed statement of your leave entitlements. If the employer refuses to count them, you will have written evidence to take to the employment tribunal.
• Consult a specialist lawyer: Before starting proceedings, a lawyer can assess your chances and the amount of your loss. In Millau as in Rodez, employment lawyers can help you.

Further Reading: Related Case Law and Developments

This decision is part of a European trend favourable to employees. Already, the CJEU had ruled in the Schultz-Hoff case (2009) that the right to annual leave cannot be subject to a period of actual work. And more recently, in the Sobczyszyn case (2015), it specified that sick leave cannot reduce the right to annual leave.

In French law, the Court of Cassation had already begun this movement in a decision of 13 March 2013 (No. 11-22.285), ruling that periods of suspension of the employment contract due to work accidents or occupational illnesses are treated as actual working time for the accrual of leave. The novelty here is the extension to non-occupational illness, provided that the salary is maintained.

The trend is clear: French courts are aligning their interpretation with European law. In the future, we can expect the Court of Cassation to go even further, perhaps by removing the condition of salary maintenance. In the meantime, this decision is already a victory for employees.

Key Points to Remember

1. I am on sick leave without salary maintenance: am I entitled to leave? No, not under this decision. The condition is salary maintenance. But European case law could evolve: watch for future decisions.

2. My employer reduced my leave during my absence: what should I do? You have 3 years to claim back pay. Bring the matter before the employment tribunal in your department (Rodez, Millau, Villefranche-de-Rouergue).

3. Does this decision apply to all employees? Yes, because the European directive applies to all. But it is easier to invoke if your collective agreement provides for salary maintenance.

4. Can I accumulate leave during a sick leave lasting more than one year? Yes, without any time limit. The directive does not set a cap. You accrue 2.5 days per month, even if the absence lasts several years.

5. What if my employer goes bankrupt? You can turn to the AGS (Association for the management of the employee claims guarantee scheme) to recover the sums owed.

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 →