Modification of dates of paid leave: Attention to the notice period!

Once the paid leave is scheduled, the employer cannot change the schedule less than a month in advance, except in exceptional circumstances, such as the need to replace an employee who died suddenly or unforeseen orders (business opportunities) likely to save the company.

Please note: a different notice period may be provided for by the company agreement or, failing that, by the collective agreement applicable to the company.

But does this notice period apply only to the employee’s main leave (i.e., the 4-week summer leave, in principle) or to all paid leave?

In a recent case (Court of cassation, Labour Chamber, 2nd March 2022, n° 20-22261), an employer had, due to a strike paralyzing a work site, imposed on his non-striking employees to take days off (composed of their fifth week of paid leave and days of contractual leave). He did this without respecting the legal notice period of one month. A union representing the employees within the company then applied to the courts to have the unlawful nature of the fixing of leave by the employer recognized.

For his part, the employer considered that no notice period applied to the fifth week of paid leave, nor to the contractual leave. To support his reasoning, he argued that the fifth week of leave would obey different legal rules from those relating to the first four weeks since, according to him, on the one hand, it could not give rise to the acquisition of split days and, on the other, employees would have the possibility of waiving it to supplement a time savings account or to donate it to another employee.

But for the Court of Cassation, in accordance with the Labor Code, the employer is not authorized, except in exceptional circumstances, to change the date of departures on leave of his employees less than a month in advance. As this text makes no distinction between the first four weeks and the fifth week of paid leave, the one-month notice period applies to all paid leave. And according to the judges, in the absence of contractual provisions to the contrary, this rule also applies to days of contractual leave. Therefore, the leave imposed by the employer on his employees, without respecting the one-month notice period, was considered unlawful.