Paid Leave and Sick Leave: The Court of Cassation Overhauls Labour Law

You have been on sick leave for several months, and your employer tells you that you have not accrued any paid leave because you have not worked. In Guebwiller, an employee in this situation took legal action. The Court of Cassation has just ruled in her favour, in a decision that changes the game for all French employees. Explanations.

The Facts: A Story Like Many Others

Mrs D., a medical secretary in Altkirch, suffered a non-occupational illness that kept her away from her post for over a year. When she returned to work, her employer refused her paid leave for this period of absence. He relied on Article L. 3141-3 of the Labour Code, which makes the accrual of leave conditional on actual work. Mrs D. contested this: she argued that European law entitled her to leave even during sick leave. The dispute went all the way to the Court of Cassation, after passing through the Mulhouse Employment Tribunal.

The Reasoning of the Court — Explained

The Court of Cassation applies European Directive 2003/88/EC on working time. It provides that every worker is entitled to at least four weeks' paid annual leave, whether or not they worked during the reference period. The Court recalls that the Directive makes no distinction between workers who are present and those on sick leave. It therefore partially sets aside Article L. 3141-3 of the Labour Code (which makes the accrual of leave conditional on actual work) and Article L. 3141-5 (which limited to one year the period of work accident treated as actual work). Consequently, an employee on sick leave accrues paid leave without any time limit for occupational illnesses, and even for non-occupational illnesses, without any condition of actual work.

What This Changes for You — In Practice

If you are an employee on sick leave (even non-occupational) for more than a year, you are entitled to paid leave for that period. For example, in Altkirch, a worker on sick leave for 18 months will be able to claim an additional 18 working days of leave. If you are an employer, you must accrue these rights and grant them upon the employee's return. Note: the accumulation of leave cannot exceed 15 months (in accordance with the European KHS case law). In practice, check your leave balance as soon as you return.

Four Tips to Avoid This Type of Dispute

• For employees: keep all your sick leave certificates and ask your employer in writing for your leave balance as soon as you return.
• For employers: keep a leave counter even during sick leave, and inform the employee of their accrued rights.
• For both: if in doubt, consult a lawyer specialising in labour law before returning.
• For payroll managers: update your software to automatically include leave during sick leave.

Further Reading: Related Case Law and Developments

This decision follows in the wake of the CJEU judgment of 22 November 2011 (KHS), which had already set a 15-month limit on the accumulation of leave. The Court of Cassation had previously resisted, but the law of 22 April 2024 paved the way. French law is now in line with European law. Further decisions will no doubt clarify the calculation methods and the fate of leave not taken during sick leave.

What You Absolutely Must Remember

FAQ:

• Q: Does an employee on non-occupational sick leave accrue paid leave? A: Yes, since this decision, without any condition of actual work.
• Q: Is there a time limit? A: Yes, the accumulation cannot exceed 15 months of leave.
• Q: What should I do if my employer refuses to grant me this leave? A: Refer the matter to the Employment Tribunal within 3 years of your return.
• Q: Does this rule apply to work accidents? A: Yes, without the previous one-year time limit.
• Q: Can I carry over my unused leave after sick leave? A: Yes, up to the 15-month cumulative limit.

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