silence can mean acceptance

Social right. All employees are entitled to days off paid by their employer in the form of a paid vacation allowance. Each full month of actual work thus entitles you to paid leave of 2.5 working days.

While the calculation of acquired leave rights gives rise to significant litigation given the complexity of the labor code and the collective agreements that are sometimes applicable, the organization of paid leave within the company also generates a number of disputes.

The law establishes an imperative framework from which neither the collective agreements which can supplement the labor code, nor a fortiori the unilateral decision of the employer can derogate. Thus, the right to leave is necessarily annual.

At least twelve days of continuous leave must be granted in the period from 1er May to October 31 each year. The main leave can be split when it is longer 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 separately. Spouses and partners bound by a PACS working in the same company are entitled to simultaneous leave. In addition, special rules apply to young employees, student employees and employees with dependent children.

The responsibility of the employer

Subject to the application of these rules, the employer has, by virtue of his management power, the power to set the dates for taking leave after consulting the social and economic committee when there is one in the company. Also, the departure of an employee in July, when the employer had imposed on him to take his vacation in September, is considered as a fault liable to a sanction which can go as far as dismissal.

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However, it is very common, when leave is given in rotation, for employees in the same department to agree among themselves on the fixing of dates, the employer contenting himself with registering them or settling disputes.

Similarly, an employee can propose dates that suit him and sometimes the request is made orally. Difficulties can arise when, without an express response from the employer, the employee nevertheless goes on leave. An absence in these circumstances can be qualified as a fault by the employer. He then imposes 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 specific instruction requiring the employee to obtain an express agreement prior to taking leave and, moreover, he was unable to provide proof of an express refusal.

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