Employers have a certain number of obligations to respect in terms of paid leave, the principle being that leave must be taken each year.
In order to allow employees to take their vacations, the employer must first set the period of paid vacations and then the dates of vacations.
> Reminder of obligations
With respect to employee representatives
In the absence of a provision in the collective agreement or in a company agreement, if there is a Social and Economic Committee (CSE) in the company (compulsory for 11 or more employees), the employer must first obtain its opinion in order to set the vacation period and the order of departure. Failure to do so may result in a fine.
With respect to employees
The employer must inform the employees of the period chosen for the taking of paid leave at least two months before the start of the leave.
In addition, he must also inform them of the dates of departure for leave at least one month before their actual departure.
It is strictly forbidden to replace the actual taking of paid leave by a paid leave allowance.
> Calendar of the employer’s legal obligations relating to the taking of paid leave by rotation
> How do split days work?
Unless otherwise stipulated in the agreement or individually waived, split days are additional days of leave due to the employee in the event that there is a remainder of the main leave on October 31.
It is no longer possible to waive split days in advance.
Indeed, the French Supreme Court has decided that the waiver in advance provided for in a clause of the employment contract is not valid, as well as a general memorandum brought to the employees’ knowledge.
How many days is an employee entitled to?
Failure to allocate split days is punishable by a 5th class fine applied as many times as there are employees concerned.
In case of counting in business days (“jours ouvrés”), the right is the same:
The waiver of split days is always possible under the following conditions:
- Waiver by collective agreement
A company, establishment or, failing that, branch agreement may abolish or reduce the number of split days. The employee’s individual agreement is then not necessary. Case law considers that the employee’s individual agreement is not required if a collective agreement provides that any request for split days of paid leave made by the employee constitutes a waiver of the split days.
- Waiver by individual agreement
In the absence of a collective agreement, employees may individually waive the right to split days. This waiver is not presumed, it must be express and unequivocal.
In the event of a waiver, it is up to the employer to prove it.
The proof is considered admissible when the employee applies for paid leave by means of an individual form mentioning that the splitting of paid leave is equivalent to a waiver. This solution has the merit of being simple to implement in companies by proposing a single model leave request form.
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