Paid leave and sickness – Article L. 3141-5 5° of the French Labor Code declared compliant with the Constitution

In a long-awaited decision handed down on February 8, 2024, the French Constitutional Council ruled that the legal provisions on paid leave and sickness, which it confined to article L. 3141-5 5° of the Labor Code, were in line with the Constitution, and thus rejected the arguments based both on the infringement of the right to health and rest (11th paragraph of the Preamble to the Constitution of October 27, 1946) and on equal treatment (article 6 of the Declaration of the Rights of Man and of the Citizen of 1789). On November 17, 2023, the Court of Cassation referred to the Sages the following two questions prioritaires de constitutionnalité (QPC) (Cass. soc., Nov. 15, 2023, no. 23-14.806):

• Conformity with the principle of protecting the health and rest of employees: Do articles L. 3141-3 and L. 3141-5, 5°, of the Labour Code infringe the right to health and rest guaranteed by the 11th paragraph of the Preamble to the Constitution of October 27, 1946, in that they have the effect of depriving, in the absence of actual work, an employee on leave for a non-occupational illness of any right to paid leave and an employee on leave for an occupational illness of any right to leave beyond a period of one year?
• Compliance with the principle of equality before the law: Does article L. 3141-5, 5°, of the Labour Code infringe the principle of equality guaranteed by article 6 of the Declaration of the Rights of Man and of the Citizen of 1789 and article 1 of the Constitution of October 4, 1958, in that it introduces, from the point of view of the acquisition of paid leave entitlements for employees whose employment contract is suspended due to illness, a distinction based on the occupational or non-occupational origin of the illness, which is not directly related to the purpose of the law establishing it?

For the record, after repeatedly calling for the Labor Code to be brought into line, the Social Division of the French Supreme Court (Cour de cassation), in its rulings of September 13, 2023 (Cass. soc, Sept. 13, 2023, nos. 22-17.340, 22-17.638 and 22-10.529), affirmed that articles L. 3141-3 (according to which an employee whose employment contract is suspended due to illness of non-occupational origin cannot acquire paid leave) and L. 3141-5, 5° (according to which an employee whose employment contract is suspended due to an illness of occupational origin cannot acquire paid leave after an uninterrupted period of one year) do not comply with European Union law (article 7 of directive 2003/88 and article 31 § 2 of the Charter of Fundamental Rights of the European Union). In the meantime, stepping up the pressure exerted internally on the legislator, the CJEU has ruled (CJEU, Nov. 9, 2023, nos. C-271/22 to C-275/22) that it is up to the Member States to define, in their domestic regulations, the conditions for exercising and implementing the right to paid annual leave, and accepts that national legislation may limit the length of the period of deferred paid leave (in this case limited to 15 months and 2 consecutive reference periods). It was against this backdrop that the Cour de cassation agreed to refer the two above-mentioned QPCs to the Conseil constitutionnel, whose response is irrevocable. As regards compliance with the principle of protecting employee health and rest, the Sages first point out that the principle of paid annual leave is one of the guarantees of the right to rest thus recognized for employees. They then consider that the legislator wished to prevent an employee who is the victim of an accident or illness resulting from his professional activity and leading to the suspension of his employment contract from losing any right to paid leave during this period. The Conseil deduced that, in view of this objective, the legislator could assimilate to periods of actual work only those periods during which the employee was absent due to an accident at work or an occupational disease, without extending the benefit of such assimilation to periods of absence due to a non-occupational disease. It can also limit this measure to an uninterrupted period of one year. The Constitutional Council concluded that the law did not infringe the right to rest. In practice, the "rupture conventionnelle" is often an alternative to dismissal. As regards compliance with the principle of equality before the law, after recalling that this principle does not prevent the legislator from regulating different situations in different ways, nor from derogating from equality for reasons of general interest, the Council considers that occupational illness and accident, which originate in the very performance of the employment contract, are distinct from other illnesses or accidents that may affect the employee. He concludes that the legislator may lay down different rules for the acquisition of paid leave entitlements for employees on sick leave, depending on the reason for the suspension of their employment contract. Here again, the Conseil constitutionnel ruled that the principle of equal treatment before the law had not been breached. Article L. 3141-5 5° of the French Labor Code is therefore declared to be consistent with the Constitution. "However, although these provisions comply with our domestic law, they are nonetheless contrary to EU law." The legislator's intervention is therefore more eagerly awaited than ever to provide answers on the applicable statute of limitations, the deferral period and the minimum leave period, at a time when, following the rulings of September 13, employee demands are multiplying with, depending on the framework that is set, extremely heavy financial consequences for companies.