Their calculation during periods of illness has engaged, within six months, the European Court of Justice, the Court of Cassation, the Constitutional Council, the Council of State, the Government, and Parliament!
Case summary: Employees on sick leave should have been entitled to paid leave for the past 30 years under European law, which the Court of Justice has repeatedly used to condemn France, leading the highest French civil jurisdiction to align its case law with this European law. Alarmed by the financial implications of a rectification in favor of the employees concerned over these 30 years, employers urged the Government to amend the legislation, which it has just achieved from Parliament after seeking legal advice from the Council of State.
I – On the situation prior to the Council of State’s opinion of March 13, 2024:
The rulings of the Court of Cassation on September 13, 2023 (read this analysis) have led to a situation of legal uncertainty to the extent that all ongoing proceedings concerning, obviously, paid leave had to be rectified, but more importantly the preparation of pay slips… and thus the payments themselves. The MEDEF had estimated the consequences of the rulings at a sum of 2.5 billion euros to be paid by employers. Indeed, the Court of Cassation, through its 2023 decisions, had summoned the executive to bring labor law into compliance with European law regarding paid leave.
This is why the Council of State was approached by the Prime Minister with a request for an opinion on bringing the provisions of the Labor Code into compliance in terms of the accrual of leave during periods of sick leave, specifically in these terms:
- The Court of Cassation, through several decisions dated September 13, 2023, highlighted the non-compliance of French law with European law regarding paid leave;
- This non-compliance emerged following several decisions by the Court of Justice of the European Union (CJEU). The Court of Cassation upheld European Union law over conflicting national provisions by relying on CJEU case law, which held that every worker's right to an annual leave period, enshrined in Article 31, paragraph 2, of the Charter of Fundamental Rights of the European Union, constitutes an essential principle of Union law.
In accordance with European Union law and the jurisprudence of the Court of Cassation, employees must accrue leave while on sick leave, regardless of the cause of the illness (whether occupational or not). Furthermore, the jurisprudence considers that the statute of limitations does not begin to run until the employer has enabled the employee to take their paid leave.
On the other hand, the Constitutional Council, when asked a priority question of constitutionality, ruled in its decision of February 8, 2024 that the provisions currently set forth in 5° of Article L. 3141-5 of the Labor Code were constitutional. It indeed considered that these provisions, which allow only periods of absence due to work accidents or occupational diseases to be assimilated to periods of actual work, without extending such assimilation to periods of absence due to non-occupational illnesses and by limiting this assimilation to an uninterrupted duration of one year, do not infringe upon the right to rest. They also do not infringe upon the principle of equality because employees on leave for professional reasons are in a different situation from those on leave for non-professional reasons, and because this difference is related to the purpose of the law which was to compensate for a loss of rights resulting from the performance of the employment contract itself.
In this context, the Government wished to quickly propose an amendment to bring French labor law into conformity with European Union law as part of the bill containing various provisions for adapting to European Union law in the fields of economics, finance, ecological transition, criminal law, social law, and agriculture, which will be adopted by Parliament in the coming days.
The Government wished to seek the Council of State's opinion on its amendment proposal as well as on the following questions:
- 1° Are there any constitutional or conventional obstacles that would prevent stipulating that employees on non-occupational sick leave accrue leave up to four weeks and thus require that they accrue five weeks of paid leave?
- 2° If it is accepted that it is possible to stipulate that employees on non-occupational sick leave accrue leave up to four weeks, is it feasible to consider retrospectively that the right to paid leave accrued during non-occupational sick leave has never exceeded four weeks and to establish this interpretation in law?
- 3° Would it be possible to provide for a carry-over period for leave of less than fifteen months in light of European Union law?
- 4° What should be the starting point for the carry-over period of leave accrued during sick leave?
- 5° Is it possible to provide for two different carry-over periods depending on whether the leave was accrued before the sick leave or during the sick leave?
- 6° Considering the very purpose of the right to paid annual leave, which is to benefit from a period of rest, would it be possible to apply retroactively the maximum carry-over duration of leave to past situations?
- 7° Does a validation law aimed at extinguishing litigation from employees seeking compensation for leave that should have been accrued during their past sick leaves present constitutional and conventional risks?
II – On the situation after the Council of State’s opinion of March 13, 2024:
The government amendment of March 15, 2024 adopted by Parliament three days later immediately modified the texts of articles L 1251-19, L 3141-5, L3141-5-1, L 3141-19, L 3141-19-3, L3141-19-2, L3141-20 of the Labor Code. The unions were vocally optimistic about what employees could claim, but the CFE-CGC indicated that it was far from sufficient!
L’amendement gouvernemental du 15 mars 2024 adopté trois jours après par le Parlement a modifié immédiatement et en conséquence les textes des articles L 1251-19, L 3141-5, L3141-5-1, L 3141-19, L 3141-19-3, L3141-19-2, L3141-20 du code du Travail. Les syndicats se faisaient « gorge chaude » de ce que les employés allaient pouvoir réclamer, mais la CFE-CGC a quant à elle indiqué qu’on était loin du compte !