ESAT: will the user become a worker?

A reminder 

An ESAT (Établissement et Service d'Aide par le Travail - establishment and service of help through work) is a French structure that enables people with disabilities to carry out a professional activity while benefiting from medical, social and educational support in a protected environment. This structure therefore welcomes people who have not acquired enough autonomy to work in an ordinary environment or in a company adapted to their needs. They can thus carry out a professional activity but also maintain their schooling, while developing professional skills.


The ESAT was born out of services that had been offered to disabled people since the beginning of the 20th century. Initially, these were advanced classes for disabled pupils and after the First World War, establishments were set up to allow positive discrimination for war wounded.

ESATs are therefore at the crossroads between the productive and the educational, since their users must provide work adapted to the different groups of people received, but they also have the task of promoting the social autonomy of these same people.

However, the question that arises today is whether the person so employed has the status of a "worker" and, in the case of Mr Fenoll, a user of the CAT La Jouvene (Vaucluse) from 1996 to 2005, whether he was entitled to five weeks' paid leave. This is indeed what the Court of Justice of the European Union ruled in its judgment of 26 March 2015, which had to interpret the notion of "worker" within the meaning of Directive 2003/88/CE of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, as well as of Article 31 of the Charter of Fundamental Rights of the European Union.

On the facts

Mr Fenoll had been a user of the CAT [the name given to ESATs at the time] La Jouvene for almost nine years, when his "use" came to an end on 16 October 2004, and he was placed on sick leave from that date until 20 June 2005. At that time, he had acquired twelve days of annual leave. He therefore claimed payment of financial compensation of €945, it being specified here that he had already previously benefited from five weeks' paid annual leave.

About the procedure

The Avignon court of first instance, which Mr. Fenoll had referred to, rejected his application at last instance. He therefore appealed to the Cour de Cassation. The Court then referred the matter to the Court of Justice of the European Union (CJEU) for a preliminary ruling, since the resolution of the dispute was conditional on the interpretation of a European Union standard. This is the process of the question referred for a preliminary ruling.

The core of the two questions thus posed was the following:

  1. Article 3 of the Directive 89/391to which the provisions of Article 1 of Directive 2003/88, which determine the scope, refer, to be interpreted as meaning that a person admitted to a CAT may be classified as a worker within the meaning of Article 3.
  2. Can a person such as the one described in the first question rely directly on his rights under the Charter in order to obtain entitlement to paid leave if national legislation does not provide for him to enjoy such a right, and must the national court, in order to ensure the full effect of that right, disapply any provisions of national law to the contrary?

Thus, the CJEU assessed that the status of "worker" must be recognised for a person admitted to a CAT, on the basis that the national judge must verify, in particular, whether the services actually performed by the person concerned are likely to be considered as falling within the normal scope of the labour market. To this end, the Court examined Mr. Fenoll's activities in detail and considered that they were not created with the aim of providing an occupation, possibly as a by-product, for the persons concerned. The Court also stated that these activities, although adapted to the abilities of the persons concerned, were of some economic benefit. On the other hand, Mr. Fenoll was deprived of any financial compensation and therefore of his paid leave previously granted because of the failure of the Lisbon Treaty and the charter it referred to to to enter into force.

This means that the user of an ESAT is now well and truly recognised as a worker, but is still not granted the rights of an employee. The status of the ESAT user remains sui generisIt therefore remains unique, for no particular reason, which exposes it to multiple risks. However, an employee is still defined as a person who undertakes to perform work on behalf of an employer in return for remuneration.