Paid Leave: Employer May Choose Calculation Method, Subject to Conditions

Imagine for a moment: you have been working for months without taking a single day of leave. You are looking forward to your holiday in Saint-Jean-de-Luz. But when you check your payslip, you notice that your employer is counting your leave days differently from what you expected. You ask yourself: is this legal? This is a question thousands of employees ask themselves every year.

The answer came from the Court of Cassation on 11 May 2016 (decision no. 15-10.252). The judges ruled that the employer may use the calculation method of its choice – in working days, calendar days, or hours – provided the employee actually benefits from five weeks of leave, i.e. 25 working days. In other words, it is the result that matters, not the method.

This decision, which arose from a dispute between a pharmaceutical laboratory and several employees, sheds light on a common grey area in employment relations. Whether you are an employer or an employee, it is essential to understand exactly what this decision says, to avoid nasty surprises. Let us dive into the details.

The Facts: A Story That Happens Every Day

The case concerns the company Lafarge (now LafargeHolcim) and several employees working as laboratory technical agents. Among them are Mr D., Mrs B., Mrs S. and Mr R. The dispute concerns the method of calculating paid leave. The employer counted leave in working days (the days actually worked in the company, generally Monday to Friday). But the employees argued that this method was less favourable to them than the legal method, which provides for 30 calendar days (i.e. Monday to Saturday).

In practice, when an employee took a day off, the employer considered it as one working day. But the employee argued that in reality, they only benefited from 25 working days per year, whereas the law guaranteed them 30 calendar days. The employer, for its part, claimed that counting in working days was perfectly valid because it allowed the employee to take five full weeks of leave, i.e. 25 working days – which corresponds to 30 calendar days.

The conflict began before the industrial tribunal (the court with jurisdiction for individual labour disputes). The employees lost at first instance and then appealed. The Pau Court of Appeal (whose jurisdiction covers, among others, Saint-Jean-de-Luz and Tarbes) ruled in their favour, considering that counting in working days was less favourable. The employer then appealed to the Court of Cassation (an appeal challenging the interpretation of the law).

The Reasoning of the Court – Analysed

The Court of Cassation quashed (annulled) the decision of the Pau Court of Appeal. To understand why, we must go back to the texts. The Labour Code (Article L.3141-3) provides that every employee is entitled to 30 calendar days of paid leave per year. However, the employer may count leave in working days, provided the employee actually benefits from 5 weeks of leave, i.e. 25 working days (Monday to Friday).

The central question was: is counting in working days in itself less favourable? The Court answered no. What matters is the concrete result: did the employee actually have 25 working days of leave (i.e. five weeks)? If so, the calculation method adopted by the employer is irrelevant. The decision states: "The Court of Appeal justified its decision approving the employer's calculation of paid leave rights by, regardless of the calculation method adopted, noting that the employees had actually had twenty-five working days of paid leave." In other words, the Pau Court of Appeal should have verified the result, not focused on the method.

The lower court judges (the Court of Appeal) had considered that counting in working days was less favourable because one working day counts as one day, whereas one calendar day counts as one and a half days (since the week has 6 calendar days). But the Court of Cassation reminds that this reasoning is incorrect: an employee who takes a week of leave in working days takes 5 days, not 6. If they take 5 weeks, they take 25 working days, which is equivalent to 30 calendar days. Therefore, there is no loss.

This decision is a confirmation of earlier case law: the Court of Cassation had already ruled in 2008 (no. 06-44.009) that counting in working days is lawful, provided the employee benefits from 5 weeks. So there is no reversal or major evolution, but a useful reminder for the Courts of Appeal.

What This Changes for You – Concrete Implications

If you are an employee: Check your payslip and your leave records. If your employer uses a working day count, make sure you are taking 25 days per year (i.e. 5 weeks). If not, you can claim additional days. For example, if you work in Tarbes for a company that counts in working days, and you only take 20 days a year, you are being disadvantaged. In that case, contact your employer first, then, if necessary, the unions or a lawyer.

If you are an employer: You are free to choose the method of counting (working days, calendar days, hours), but you must guarantee the employee a number of leave days at least equivalent to 5 weeks. Beware: if you use a working day count, you must ensure that the employee does not take less than 25 days per year. A common trap: some employers count in working days but only grant 30 calendar days, which effectively gives 5 extra days (i.e. 30 working days). That is possible, but you must be consistent in your communication.

If you are a property professional (property manager): Although this decision concerns labour law, it illustrates a general principle: in law, the concrete result often prevails over form. In co-ownership, for example, a method of calculating charges may be disputed, but if it results in a fair distribution, the courts may validate it.

Four Tips to Avoid This Type of Dispute

• Check your collective bargaining agreement: It may provide for a specific counting method (e.g. calendar days). If so, the employer must apply it, unless there is a more favourable company agreement.
• Document your rights: Keep a personal record of leave taken and remaining. In the event of a dispute, you will have tangible evidence.
• Submit your leave requests in writing: Use a traceable tool (email, HR software) to avoid disputes over the number of days taken.
• If in doubt, seek legal advice: A quick consultation with a lawyer specialising in labour law (such as Maître Zakine) can clarify your rights and avoid costly litigation.

Further Analysis: Related Case Law and Developments

This decision is part of a consistent line of the Social Chamber of the Court of Cassation. As early as 2008 (no. 06-44.009), it ruled that "the method of calculating paid leave adopted by the employer, whether in working days or calendar days, must result in the employee benefiting from five weeks of leave". The 2016 decision merely confirms this principle.

Another interesting decision is that of 13 March 2013 (no. 11-22.285), where the Court specified that if the employer uses a working day count, it must clearly inform employees of the method used, failing which the flat-rate agreement in days is void. Transparency is therefore essential.

In practice, the courts are increasingly attentive to compliance with the actual result. The trend is to protect the employee, but without excessive formalism. For the future, we can expect the Court of Cassation to continue to favour a balance between employer flexibility and guarantee of employee rights.

What You Absolutely Must Remember

FAQ:

• Can my employer count my leave in hours? Yes, provided the annual total corresponds to 5 weeks (i.e. 35 hours per week, so 175 hours for a 35-hour week).
• I am on a flat-rate days scheme, is it different? Yes, employees on a flat-rate days scheme are entitled to additional rest days (RTT), but the principle of 5 weeks of paid leave remains the same.
• What should I do if my employer only grants me 20 working days? You are entitled to claim the missing 5 days. First contact your employer, then the industrial tribunal.
• Can I challenge a working day count if my collective bargaining agreement provides for calendar days? Yes, the collective agreement may be more favourable. You must then benefit from the most advantageous calculation method.
• Is there a time limit to take action? Yes, a legal action for a leave dispute is time-barred after 3 years from the date you became aware of your rights.

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 →