In four decisions given on 13 September 2023, the French Supreme Court has created a big stir in the French HR world.  

Through an extensive interpretation of article 7 of EU directive 2003/88/CE of 4 November 2003, which provides that any employee should benefit from a global paid annual leave of at least four weeks, combined with article 31 of the Charter of the Fundamental rights of the EU (“any employee is entitled to paid annual leave”), the French Supreme Court has confirmed that:

  1. Employees on non-occupational sick leave can also accrue PTO (paid time off). Traditionally, France considered that paid leave was compensation for periods of effective work and only leave that is treated as effective work (such as paternity, maternity leave or leave consecutive to an occupational accident or sickness) could enable the employee to accrue paid leave (Cass. soc. 13-9-2023 n° 22-17.340 et 22-17.342 Sté Transdev);
  2. Employees off work due to an occupational illness or accident continue to earn paid leave after an uninterrupted period of one year (Cass. soc. 13-9-2023 n° 22-17.638, Sté Transports Daniel Meyer);
  3. Paid leave earned prior to parental leave is carried over after the date of return to work (only for situations prior to 11 March 2023) (Cass. soc. 13-9-2023 n° n° 22-14.043, CGR); and
  4. The statute of limitation for the right to paid leave (normally three years) can only start running once and only if the employer has taken all necessary measures to enable the employee to effectively exercise their right to paid leave. In practice, this means that employees could bring claims for back payment of paid leave for more than three years (Cass. Soc., 13 sept. 2023, FP-B+R, n° 22-11.106).

HR should therefore be prepared to face new claims on PTO back-payment for their employees (past and current) that were on ordinary sick leave during the employment relationship.

Analysis from the French Supreme Court :

 For any queries related to this article, please contact Julien Haure or Marine Hamon.