The employer’s failure to organize paid leave […].

The employer's failure to organize paid vacations does not allow the employee to take them without authorization (Cass. soc., December 13, 2023, no. 22-17.890) The employer is responsible for organizing paid vacations. Indeed, the determination of vacation dates is one of its prerogatives by virtue of its managerial power, even if in practice it takes into account the wishes of its employees. An employee may not take leave without his employer's agreement, and if his employer refuses, he commits an act of insubordination if he continues to take leave. But what happens when the employer fails to take the necessary steps to organize paid leave? Does this breach allow an employee to take unauthorized leave, and thus exonerate himself from a fault? It is to this problem that the decision under review clarifies. In this case, the Cour de cassation validates the dismissal for real and serious cause of an employee who went on leave without notifying his employer, even though the latter had failed to take the measures necessary to enable him to effectively exercise his rights in this respect.

1. A reminder of the rules applicable to taking paid leave

For the record, the terms and conditions for taking paid leave are governed by legal provisions. The French Labor Code stipulates that, in the absence of a collective bargaining agreement, it is up to the employer to set the vacation period and the order of departures during this period (article L. 3141-16 of the Labor Code). Employers also have a duty to inform employees:

• the period must be brought to their attention at least two months before it begins (article D. 3141-5 of the Labor Code);
• as for the order of departures, this must be communicated by any means to each employee one month before his or her departure (article D. 3141-6 of the French Labor Code).

Finally, under the influence of European law, and in particular Directive 2003/88/EC of November 4, 2003, case law has clarified that it is the employer's responsibility to ensure that the employee can effectively exercise his right to leave (Cass. Soc. December 16, 2015, no. 14-71.294; Cass. Soc. July 6, 2022, no. 21-12.223).

2. The facts of the case

In this case, an employee was dismissed for gross misconduct after taking paid leave during the month of August without having taken it in advance and without having been authorized to do so by his employer. The employee challenged his dismissal before the industrial tribunal, arguing that the employer had failed to organize paid leave. The first judges ruled out serious misconduct, but considered that his dismissal was indeed for real and serious reasons. The employee appealed against this decision, arguing that the employer had failed to demonstrate compliance with the legislation governing vacation dates, in particular articles D. 3141-5 and D. 3141-6 of the French Labor Code. In a confirmatory ruling, the Court of Appeal hearing the case dismissed the employee's claims, ruling that "the employer's failure to organize paid leave was not such as to render the absence at fault". In other words, if the lower courts consider that this absence is indeed at fault, it cannot constitute serious misconduct, but only a real and serious reason for dismissal. The employee then appealed to the French Supreme Court.

3. The decision of the Cour de cassation

The High Court confirmed the reasoning adopted by the lower courts and dismissed the employee's appeal. Relying on the sovereign power of trial judges, the Cour de cassation ruled out serious misconduct. According to the judges: " such a long absence, throughout the month of August 2017, without notifying his employer, did not make it impossible for the employment contract to continue, insofar as the employee could have been authorized to take his leave during the month of August if he had made his request to his employer, and it is not disputed that he had not used up all his leave entitlement ". This faulty absence therefore justifies dismissal for real and serious cause - and not for gross misconduct - since "assuming that the employer had indeed not complied with the legislation relating to leave", the employee could not take leave without having applied for it in advance. An employee can therefore be dismissed for real and serious reasons for taking paid leave without notifying his employer and without having been authorized to do so beforehand, even if the employer has not taken the necessary measures to enable him to exercise his rights in this respect.

4. The scope of this decision

This new decision confirms the position of case law in this area. In the past, judges have already held that an employer's failure to meet its obligations in terms of informing employees and setting vacation schedules could render the employee's fault in taking unauthorized leave less serious (CA Paris, June 25 1986, no. 33156-84; Cass. Soc. July 11 2007, no. 06-41.706). It should also be noted that, while an employee may be penalized for failing to comply with his employer's instructions regarding the taking of paid leave, this decision does not exonerate the employer from complying with his obligations in this respect. Indeed, any failure to comply with the company's obligation to provide information in this area may have prejudicial consequences, and the company may be fined as a fifth-class offence (article R. 3143-1 of the French Labor Code).