Entrepreneur Modification of leave: pay attention to the notice period!

Modification of leave: pay attention to the notice period!

Once the departures on paid leave of the employees have been planned, the employer cannot modify their dates less than one month in advance. Except in exceptional circumstances, such as the need to replace an employee who died suddenly or unforeseen orders likely to save the company.

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

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

In a recent case, an employer had, because of a strike paralyzing a work site, imposed on its non-striking employees to take days off (days making up their 5and week of paid vacation and conventional vacation days). And this, without respecting the legal notice period of one month. A trade union representing employees within the company then took legal action to have the unlawful nature of the fixing of leave by the employer recognized.

For its part, the employer considered that no notice period applied to the 5and week of paid leave, nor to conventional leave. To support his reasoning, he argued that the 5and week of leave obeyed legal rules different from those relating to the first 4 weeks since, in particular, it could not give rise to the acquisition of days of splitting and that employees had the possibility of renouncing it to top up a savings account time 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 modify the dates of the departures on leave of its employees less than a month in advance. This text making no distinction between the first 4 weeks and the 5and week of paid leave, the notice period of one month applies to all paid leave. And according to the judges, in the absence of contrary conventional provisions, this rule also applies to conventional days off. Also, the fact that the employer imposed leave on its employees without respecting the notice period of one month was deemed unlawful.

Social cassation, March 2, 2022, n° 20-22261

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