Can employees go on holiday without telling their employer ?

Published on 27 february 2024


Employment & Labour Law

After ruling on the acquisition of paid leave during sick leave (Cass. Soc. no. 22-17.340; 22-17.341 and 22-17.342), which continues to fuel debate, the Court of Cassation has ruled on the subject of paid leave, asking the following question: can an employee go on paid leave without notifying his employer when the latter is in breach of his obligations in this respect ?

Deciphering the decision of the French Labour Court of 13 December 2023 (no. 22-17.890):

Reminder of the employer's obligations with regard to paid leave:

The Labour Code requires employers to: 

  • Inform employees of the paid leave period at least two months before the start of the period. (C. Trav., art. D3141-5) 
  • Notify each employee of the order in which they will be taking their leave, by any means, one month before their departure. (C. Trav., art. D3141-6)

These provisions are of public order. 
More generally, the employer has an obligation to grant employees the leave they have earned. 

The case law position, inspired by European law (Directive 2003/88/EC of 4 November 2003), is clear: it is the employer's responsibility to take the appropriate measures to ensure that the employee can effectively exercise his right to leave, and, in the event of a dispute, to justify that he has taken the steps legally required of him to do so. (Cass. Soc., 6 July 2022, no. 21-12.223)

The burden of proof lies with the employer, who must demonstrate that he has taken the said measures enabling the employee to effectively exercise his right to leave (Cass. Soc., 9 May 2019, no. 17-27.448). 

This raises the question of the penalty incurred by the employer in the event of non-compliance with this obligation and, consequently, the options open to the employee in the event of a breach by his employer.

The facts of the case:

An employee, recruited in May 2016, was dismissed for gross misconduct on 11 September 2017 for absence from work during the month of August 2017. 

Before the lower courts (Colmar Court of Appeal, Chamber 4 a, 30 September 2021, no. 20/00158), the employee contested his dismissal on the grounds that: 

  • "He had obtained his employer's verbal agreement to go on leave from 31 July to 1 September 2017;
  • That the employer did not demonstrate that it had complied with the legislation relating to holiday dates, in particular Articles D.3141-5 and D.3141-6 of the Labour Code relating to the deadline for informing employees of the holiday period and the deadline for notifying each employee of the holiday departure order;
  • Since he had not taken any days of leave since he was hired, he was entitled to take leave in 2017;

That he had gone abroad and could not be aware of the formal notices sent by the employer". 
The first argument was quickly rejected by the lower court, as the employee had not provided proof of his employer's verbal agreement.

The last argument was also dismissed insofar as it is up to the employee to take the necessary steps to find out about any mail that arrives at his home in his absence. 

The remaining question was therefore as follows: if the employer does not comply with its paid leave obligations, can the employee decide to go on leave without informing the employer? 

This question is different from the one that arises when the employee goes on leave without the employer's authorisation, because the employer does not respond. If the employer has not set up a specific procedure and does not expressly respond to the employee's request, the employee's departure on leave is not at fault because the employee could have considered that his request had been accepted. (Cass. soc. 6 April 2022 no. 20-22.055)

Position of the Cour de cassation:

In this case, neither the Court of Appeal nor the Court of Cassation explicitly ruled on the employer's failure to meet its obligations in respect of paid leave. 

The Supreme Court merely states: 
"Even if the employer had failed to comply with the legislation on holiday dates, the employee could not take holiday without first applying for it".

At first sight, the solution is clear: the employee is at fault for taking unjustified leave, regardless of whether or not the employer has breached its obligations with regard to paid leave. Such misconduct also justifies dismissal.

While abandonment of post and/or unjustified absences in the absence of a response to formal notices are generally recognised as serious misconduct making it impossible for an employee to remain with the company, the situation is different in this case. 

In this case, the judges made an interesting clarification. 

Although the employee did not inform his employer, his misconduct did not make it impossible to continue his employment contract for two reasons, according to the Cour de cassation, which adopted the arguments of the appeal judges: 

  • The employee could have been authorised to take his leave during the month of August if he had made his request to the employer.
  • It is not disputed that he had not used up all his leave entitlement. 

This justification may seem surprising.

Indeed, the judges did not dwell on the employer's alleged failings, but on the fact that the employee "could have been authorised to take his leave during the month of August if he had made his request to the employer". 

The judges used the conditional tense to put themselves, as it were, in the employer's shoes. 

In other cases where the employee had decided to unilaterally set his holiday entitlement, the dismissals had already been recognised as being justified on the grounds of serious misconduct (Cass. Soc., 19 June 1997, no. 94-44.997) or genuine and serious cause (Cass. Soc., 16 May 2007, no. 05-44.703). 

In order to classify the misconduct, the judges took into account, more conventionally, the various elements of the context (context of tension, custom of taking leave in the company), checked whether or not the employee had asked his employer to take leave, whether the employer had explicitly refused...

In the case at hand, would the solution have been different if, for similar facts, the employee's absence had caused a particular prejudice to the company? If the employer had been able to provide an objective reason why the employee could not take his leave at that time? Was the absence of a different duration? Or for a period other than August? 

Furthermore, could the argument that the employee "could have been authorised to take his leave" also apply to "classic" situations of abandonment of post or unjustified absences (by classic, we mean without any discussion of the right to paid leave and the employer's failings)? 

Although Act no. 2022-1598 of 21 December 2022 introduced the mechanism of presumption of resignation in the event of voluntary abandonment of post (C. Trav., art. L1237-1-1), many employers still prefer the mechanism of dismissal for serious misconduct in such situations.

The justification for reclassifying gross misconduct as genuine and serious misconduct thus leaves a number of questions open and seems somewhat hypothetical to us, as evidenced by the Court of Cassation's use of the conditional tense. 

Nevertheless, these questions should not overshadow the main lesson to be learned from the ruling of 13 December 2023.

Lessons from the ruling:

Be that as it may, the position of the Cour de cassation is explicit on one point: the employee may not take his leave on his own without informing his employer in advance, regardless of whether or not the employer fails to meet his obligations in this regard.  

In doing so, the employee commits a fault, which is not necessarily serious.

In the final analysis, while employers must be particularly vigilant when it comes to paid leave and put in place a clear policy on the period during which leave is taken and the order in which it is taken, employees must respect this procedure and not allow themselves the freedom to take leave whenever they want without informing their employer.

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