Actance Tribune
What's NEW under French Employment Law?
N° 27 – May 6, 2024
The acquisition of paid leave during sick leave due to non-professional origin: a novelty in France
In France, until now, the law did not provide for the acquisition of paid leave for employees on sick leave due to illness of non-occupational origin (French Labour Code, art. L. 3141-5).
In September of 2023, the Court of Cassation set aside French law in favour of European law, recognising a right to paid leave for employees on sick leave (Court of Cassation – social division, September 13, 2023, no. 22-17.340 to No. 22-17.342 and No. 22-17.638).
The law of April 22, 2024 was adopted to limit the effects of this case law.
1 – Acquisition of paid leave during work stoppage due to accident or illness of non-occupational origin
The law grants 2 working days of paid leave per month, up to 4 weeks per year to employees on non-occupational sick leave.
2. Introduction of a postponement period for paid leave acquired and not taken due to sick leave.
Paid leave acquired, before and during sick leave, may be carried over.
The duration of the deferral period is now set at 15 months. A company agreement may set a longer duration for the deferral period. However, this cannot set a deferral period of less than 15 months.
Concerning the starting time of the deferral period, the following situations should be distinguished:
- Paid leave acquired prior to sick leave: The starting time for the deferral period begins on the date on which the employee receives, after returning to work, information relating to the number of days of leave available to them;
- Paid leave acquired during sick leave: When paid leave has been acquired during sick leave, the employee benefits from a deferral period of 15 months to use it:
- Should the sick leave last less than one year, the deferral period begins when the employee is informed (see below);
- Should the sick leave last for at least one year: the deferral period begins on the date on which the reference period for which this leave was acquired ends, and on this date, if the employment contract is suspended due to illness or accident.
3. New employer information obligation
The law has established a new obligation to inform the employee, which causes the deferral period to run in 2 of the aforementioned situations.
At the end of a period of employee sick leave, the employer shall inform them, within 1 month following the resumption of work and by any means conferring a specific date and in particular by means of the pay slip:
- the number of days off they have,
- the date until which these days of leave can be taken.
4. Retroactive application
These new rules are retroactive and can extend back as far as December 1, 2009.
Employees still working within a company have 2 years, from the entry into force of the law, that is, until April 24, 2026, to claim leave which could have been acquired during periods of sick leave since December 1, 2009.
For employees who have left a company, the three-year limitation period applies.
Please note about paid leave acquired during work stoppage due to occupational accidents and illnesses: employees on sick leave due to Accidents at Work and Occupational Diseases continue to benefit from paid leave during this period up to 2.5 days per month, and up to a maximum of 30 days.
The law removes the one-year limit on the acquisition of paid leave during an AW/OD stoppage. Employees therefore acquire paid leave for the entirety of the sick leave, regardless of the duration of the sick leave.
So, there is a difference in handling work stoppages for non-occupational illness and stoppages for AW/OD in terms of the acquisition of paid leave:
- 2 days per month, up to 24 days per year;
- 2.5 days per month, up to 30 days per year;
The individual conventional termination procedure in France
The conventional termination procedure is one that allows the employer and the employee to jointly agree on the conditions for the termination of their binding employment contract.
Unlike a dismissal which is a unilateral decision by the employer or resignation which is a unilateral decision by the employee, conventional termination requires a mutual agreement between the two parties.
When an employer and an employee consider a conventional termination, they must initiate a specific procedure for the termination to be valid.
There is no formality regarding the request for a conventional termination. The request can therefore be made orally or in writing.
However, the termination must be the subject of one or more discussions between the employer and the employee.
Then, the termination agreement must be signed by both parties and submitted to the labour administration for approval.
The administration must ensure that the termination complies with the law and that it does not involve any lack of consent.
A copy of the termination agreement must be given to the employee. Otherwise, the termination agreement shall be considered void.
Once approved, the termination agreement takes effect and the employment contract is terminated on the date agreed by the parties.
News!
Mandatory digitalisation of approval applications
The request for approval of the termination agreement must now be made electronically via “TéléRC” ( www.telerc.travail.gouv.fr ). This is mandatory (except for protected employees).
Signing the termination agreement on the day of the preliminary interview
According to a decision delivered on March 13, 2024 (Court of Cassation – social division, March 13, 2024, n° 22-10.551), the Court of Cassation ruled that the interview prior to the conventional termination and the signing of the termination agreement can occur on the same day.
Signing the conventional termination constitutes a waiver of a previous dismissal
When the employment contract has been terminated by one or other of the parties exercising their right to unilateral termination, the subsequent signing of a conventional termination constitutes a joint renunciation of the previous termination. Thus, an employee cannot rely on a verbal dismissal occurring before the signing of a conventional termination (Court of Cassation – social division, May 11, 2023, no. 21-18.117).
The conventional termination reinforced by guarantees for the employee
One of the main advantages of a conventional termination is that it allows the employee to benefit from unemployment insurance, unlike resignation which can deprive the employee of their rights to unemployment benefits.
Moreover, the conventional termination offers the possibility of negotiating the departure conditions, such as the severance payment or the contract end date.
For the employer, conventional termination can also have advantages, particularly in terms of simplifying contract termination procedures and reducing the risk of litigation. By opting for a conventional termination, the employer can establish a negotiated and peaceful departure with the employee.
Favourable social regime
A new social and tax regime came into effect on September 1, 2023 concerning the employee severance payment as part of the conventional termination of their contract.
Overview
This new regime applies to pay already paid for the termination of an employment contract whose term expires after August 31, 2023, regardless of the date of signature of the termination agreement.
Ultimately, the conventional termination of the employment contract in France is a system offering both employers and employees an alternative to dismissal or resignation.
This amicable termination makes separations easier while respecting the rights of all as well as providing the possibility of negotiating the departure conditions.