In two landmark rulings on 10 September 2025, which substantially alter the interpretation of the right to paid leave under French law in the event of illness, the Court of Cassation continues its work to bring French law into line with European law.
1. Right to carry over paid leave in the event of sick leave
The Court of Cassation has consistently applied the rule of the first cause of suspension of the employment contract to manage situations where paid leave and sick leave coincided.
Thus, if the employee was on sick leave before the start of his paid leave, the employee was entitled to carry over the days of paid leave coinciding with his period of sick leave. Conversely, if the employee was first on paid leave and then on sick leave, he could not subsequently take the paid leave days that he had been unable to take due to his sick leave.
As the latter position was contrary to European legislation and the case law of the Court of Justice of the European Union, on 18 June 2025 the European Commission initiated infringement proceedings against France for non-compliance with the Working Time Directive.
It criticized French legislation for not allowing employees who fell ill during their annual leave to recover the days of rest they had lost.
A change in domestic law was therefore foreseeable. A change in domestic law was therefore foreseeable. This change was brought about by a ruling of 10 September 2025 (No. 23-22.732) in which the Court of Cassation ruled, pursuant to Article 7(1) of Directive 2003/88/EC, that : “an employee who is unable to work due to illness occurring during the period of paid annual leave is entitled to take the days of paid leave coinciding with the period of absence from work due to illness at a later date “.
It specifies, however, that in order for the employee to benefit from such a carry-over, he must have notified his employer of his sick leave.
This clarification is important in a context where the extent of any retroactivity linked to this case law is unknown.
Thus, an employer whose employee wishes to benefit retrospectively from leave days that they were deprived of in the past could argue that the employee was obliged to notify them of their absence within the time limit prescribed by the provisions of the collective agreement and that, as this formality was not complied with at the time, they cannot grant their request.
2. Inclusion of paid leave in the calculation of the overtime threshold
Article L. 3121-28 of the Labour Code states that “Any hour worked in excess of the legal weekly working time [i.e. 35 hours] or the equivalent working time is overtime, which entitles the employee to additional pay or, where applicable, equivalent compensatory rest time “.
In this regard, the Court of Cassation considered that paid leave days did not constitute actual working time. It concluded that, in the absence of legal or contractual provisions or customary practice to the contrary, paid leave days should not be taken into account when determining whether, in a given week, the employee had worked overtime (Cass. soc., 4 April 2012, no. 10-10.701; 25 Jan. 2017, no. 15-20.692).
In its ruling of 10 September 2025 (No. 23-14.455), the Court of Cassation reversed its position on this issue. It thus partially set aside Article L. 3121-28 of the Labour Code, ruling that paid leave must be taken into account in calculating the weekly threshold for triggering overtime, provided that the employee is subject to weekly accounting. Employees are therefore entitled to the additional pay they would have received if they had worked the entire week.
Although this solution complies with European law, it may ultimately penalize employees. To circumvent this case law, some employers may no longer grant paid leave for periods of less than a full week.