Deferral of Paid Leave in Case of Illness: The Decision That Changes Everything for Employees

Imagine the scene: in Villeneuve-lès-Avignon, Sophie, a care assistant in a nursing home (Ehpad), falls seriously ill in November 2005. She is on sick leave until March 2007. Upon her return, her employer informs her that she has lost her 12.5 days of paid leave accrued in 2005 because she did not take them before her leave. This situation, you may be experiencing it now, or you fear it might happen to a loved one. The question is simple: can an employee defer unused paid leave due to illness? The answer is yes, and it comes from the French Supreme Court in a decision of 24 February 2009 (No. 07-44.488). This decision, based on European law, protects employees who could not take their leave due to absence for illness, work accident or occupational disease. But what exactly does it change? Let's dive into the details.

The Facts: A Story Like Many Others

The case begins in Creil, in the Oise department. An employee, employed by the Primary Health Insurance Fund (CPAM) of Creil, is absent due to illness from 17 November 2005 to 1 March 2007. Before her leave, she had accrued 12.5 days of paid leave for the year 2005, but she could not take them due to her state of health. Upon her return, she requests the deferral of these days to the year 2007. Her employer refuses, considering that the leave not taken before 31 May 2006 is lost, in accordance with the French Labour Code. The employee then brings the matter before the employment tribunal's interim relief judge, who orders the deferral. The employer challenges this, but the French Supreme Court confirms the decision. The judges' reasoning is based on European Directive 2003/88/EC, which sets out the purpose of annual leave: to allow the employee to rest and recuperate. However, if the employee could not take their leave because they were ill, this purpose is not fulfilled. In clear terms, the right to leave does not automatically expire at the end of the reference period. What few people know is that this solution also applies to work accidents and occupational diseases. undefined, I have encountered cases where employees, after a long absence, were deprived of their leave, creating a deeply unfair situation.

The Reasoning of the Court — Dissected

The French Supreme Court relies on European Directive 2003/88/EC, which requires Member States to guarantee every worker at least four weeks of paid annual leave. The purpose of this leave is to allow the employee to rest and preserve their health. If the employee is ill during the period when they should have taken their leave, they cannot fully benefit from it. The judges therefore consider that the accrued leave must be deferred after the return to work, otherwise the right to leave would be rendered meaningless. Concretely, the Court ordered the deferral of the 12.5 days of leave not taken in 2005 to the year 2007. However, this deferral is not automatic for all leave. It concerns employees who were unable to take their leave due to an absence related to illness, work accident or occupational disease. In other words, if the employee chose not to take their leave while in good health, the deferral is not owed. The decision confirms an evolution of French law towards better protection of employees, in compliance with European law. The employer's arguments (loss of leave not taken within the legal deadline) were dismissed in favour of the purpose of leave.

What This Changes for You — Concretely

For an employee, this decision is a lifeline. If you are absent due to illness or accident and could not take your leave, you can demand its deferral after your return. For example, an employee in Bagnols-sur-Cèze, absent for six months due to an occupational disease, can defer their 15 days of leave to the following year. For the employer, this means anticipating: providing in the payroll software the possibility of deferring unused leave for medical reasons, and informing employees of their rights. If you are a landlord, this decision has no direct impact, but it illustrates the importance of European law in labour relations. For a co-owner, it is a reminder that rights do not always expire on a deadline. How to react? If you are an employee, keep your sick leave certificates and send a written request to your employer as soon as you return, citing this decision. In case of refusal, bring the matter before the employment tribunal. Time limits: you have up to 2 years after your return to act. The amounts involved can be significant: 12.5 days of leave represent about half a month's salary.

Four Tips to Avoid This Type of Dispute

• For employees: Keep all your sick leave certificates and request in writing the deferral of your unused leave as soon as you return. Use registered mail with acknowledgement of receipt.
• For employers: Set up an internal procedure to manage the deferral of leave in case of illness. Train your HR staff on the French Supreme Court's case law.
• For both parties: Check the applicable collective agreement: some provide for more favourable deferral rules.
• In case of dispute: Consult a lawyer specialising in labour law before initiating proceedings. Mediation can sometimes resolve the conflict without going to court.

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Further Analysis: Related Case Law and Developments

Before this 2009 decision, the French Supreme Court considered that leave not taken within the year was lost, unless the employer agreed. The 2009 decision marks a reversal, influenced by the Court of Justice of the European Union (CJEU). For example, in the Schultz-Hoff case (2006), the CJEU had already held that the right to leave does not expire at the end of the reference period if the employee was on sick leave. Since 2009, French courts have extended this principle: deferral is possible even for non-occupational illnesses, provided the absence prevented the effective taking of leave. The trend is clear: judges protect the right to rest. For the future, we can expect employers to be required to systematically offer deferral, subject to damages.

Key Points to Remember

1. Who is affected? Any employee on sick leave, work accident or occupational disease.
2. Which leave? Paid leave accrued before the absence and not taken due to the absence.
3. When to request deferral? As soon as you return to work, in writing.
4. What to do in case of refusal? Bring the matter before the employment tribunal within 2 years.
5. Caution: Deferral is not automatic if the employee refused to take their leave while in good health.

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