Social law. Any employee is entitled to days of remunerated leave by his employer in the form of a paid vacation allowance. Each month of complete actual work thus entitles a paid leave of 2.5 working days.
If the calculation of the rights acquired to leave gives rise to significant litigation in view of the complexity of the labor code and sometimes applicable collective agreements, the organization of paid holidays within the company also generates many disputes.
The law fixes an imperative framework to which neither the collective agreements which can supplement the Labor Code, nor a fortiori the unilateral decision of the employer may not derogate. Thus, the right to leave is necessarily annual.
At least twelve days of continuous leave must be granted in the period of 1 er May at October 31 of each year. The main leave can be split when it is lasting more than twelve working days with the agreement of the employee.
Except in certain circumstances, the fifth week and, more generally, the days acquired beyond twenty-four days must be taken apart. Spouses and partners linked by a PACS working in the same company are entitled to simultaneous leave. In addition, specific rules apply to young employees, student employees and employees with dependent children.
Subject to the application of these rules, the employer has, under its power of management, that of fixing the dates of taking leave after the opinion of the social and economic committee when it exists in the company. Also, is considered a fault likely of a sanction which can go as far as dismissal the departure of an employee in July, while the employer had imposed on him to take his vacation in September.
It is however very frequent, when the leaves are given by rolling, that the employees of the same service manage between them on the fixing of the dates, the employer contenting himself with saving them or cutting the disputes.
Likewise, an employee can offer dates that suit him and the request is made orally. Difficulties may arise when, without express response of the employer, the employee still goes on leave. An absence in these circumstances may be qualified as fault by the employer. He then pronounces a disciplinary sanction.
Such a case has just been decided by the social chamber of the Court of Cassation on April 6, 2022. In accordance with a constant interpretation of this type of situation, the high judicial court approves the court of appeal which had canceled the sanction. The employer did not justify any precise instructions imposing on the employee to obtain an express agreement prior to taking leave and he could not also provide proof of express refusal.
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