France is in great limbo, as if lost. In payroll offices across the country, we are agitated, we are questioning ourselves and we are trying to see more clearly about the decisions taken by the Court of Cassation at the start of the school year. On September 13, the highest French court handed down several rulings that will be described as favorable to employees on the acquisition of their paid leave. To put it simply, workers will now accumulate paid leave throughout their sick leave, which French law did not previously provide for. Ordered to align with European law by the Court of Cassation, bosses are now obliged to grant paid leave to all their employees, even when they are absent for health reasons. A decision applauded by workers’ unions but which makes business leaders cry. And forced the French state to look very seriously and quickly into the issue. Explanations.
What does the court of cassation say?
Made public on December 13, the decisions of the court of cassation are clears. As a Member State of the Union, France must adapt itself to European law, which takes precedence over French law. Since 2003, a directive has required Member States to grant paid leave to employees, even when they are on sick leave. Except that France did not apply it. It was even the last nation in this case. Successive governments have undoubtedly considered that this measure did not have to apply in France, a country with the most protective social system. Since September 13, all workers must therefore continue to accumulate CP, even when they are absent for health reasons. And this “even if this absence is not linked to a work accident or an occupational illness”, recalls the court.
But that’s not all. The court also abolished the time limit provided for in the case of a work accident. Until now, the calculation of paid leave rights was limited to the first year of leave if the employee was the victim of an accident at work. This will no longer be the case.
Why did the rule change?
Until now, employees continued to accumulate 2.5 days of paid leave per month, provided that their work stoppage was less than four weeks. After this period, obtaining these rights was suspended until the employee returned to the company. An employee who would have been absent for six months therefore did not have the possibility of obtaining his 30 days of CP. From now on, this same worker will accumulate 15 days of leave over this period, which he can take upon his return to the company. This European rule must be the same for all workers in the 27 Member States. France was “keeping its head in the sand” until now even though “everyone knew that the directive existed”.
What does this change for employees?
For all those who are not on sick leave, this changes absolutely nothing. The accumulation will remain the same and no employee will have more paid leave. Only people who have been on sick leave for a long period of time (more than four weeks) will see their conditions of eligibility change. The decision of the Court of Cassation setting a precedent, the measure is, in theory, applicable since September 13. In fact, the bosses are procrastinating while waiting to see things more clearly. In a note submitted to the Ministry of Labor, Medef estimated that the application of this measure will cost 2.7 billion euros per year in social contributions to companies. The employers’ union, as we can guess, does not want it.
Can we claim unallocated leave?
This is the question everyone is asking. Do these decisions of the Court of Cassation give rise to retroactivity? And if so, until when? In fact, we still don’t know it. The European directive dating from 2003, some have launched the crazy idea that a long, very long retroactivity, based on the case law of the Court of Cassation, could be claimed. According to Medef 35 lawyer, Pia Le Minoux, “we should wait for the details that will be provided by the legislator in order to be completely sure on this point”. Unlikely to see retroactivity apply. “The law will have to say that the companies were in good faith since 2003 since they respected French law, that they are not responsible for this situation,” believes the lawyer. But in the ranks of employee unions, we insist: France knew for a long time that it was not in compliance but it did nothing to correct it.
And what do the bosses think?
They are obviously upset, angry but above all lost. “The law is an extremely complex language and not everyone has the keys to understanding what this directive will change. We have many members who wonder about the consequences,” assures Eric Challan-Belval. The president of the departmental section of Medef in Ille-et-Vilaine even questions the merits of this directive. “Paid leave is meant to take a break from the work we have done. But if we don’t work, what do we rest from? », he questions. The delegate from the local employers’ union agrees. “What capacity do companies have to implement these measures? This will have an impact on their profitability and their competitiveness,” estimates Xavier Migeot. Like their national representatives, Medef officials in Ille-et-Vilaine are asking the State to act quickly with a law to “secure the past and limit the impact for the future”, warns the president of Medef 35 , which invites the State to “learn lessons” from this delicate situation.
The issue could be addressed at the next Council of Ministers on Wednesday, November 22.