Cass. Soc., QPC November 15, 2023, n°23-14.806 FS-B
Articles L. 3141-3 and L. 3141-5, 5° of the French Labor Code are contrary to European law insofar as they prevent the acquisition of paid leave during periods of absence from work due to non-occupational illness, and limit such acquisition to periods of absence from work due to occupational injury or illness not exceeding one year.
In several rulings dated September 13, 2023, the French Supreme Court brought French law into line with European law on the acquisition of paid leave during periods of illness.
These provisions remain in force to this day, however, in the absence of legislative intervention.
This is set to change in the coming months, however, as on November 15 the French Supreme Court (Cour de Cassation) decided to refer two QPCs concerning these two articles to the French Constitutional Council.
According to the petitioner, these provisions infringe the right to health and rest guaranteed by the Preamble to the Constitution of October 27, 1946, insofar as they “have the effect of depriving, in the absence of actual work, an employee on leave for illness of non-occupational origin of any right to the acquisition of paid leave, and an employee on leave for illness of occupational origin of any right to the acquisition of paid leave beyond a period of one year”.
The claimant also raised a risk of infringement of the principle of equality, guaranteed by the Declaration of the Rights of Man and of the Citizen of 1789 and the Constitution of October 4, 1958, in that article L. 3141-5, 5° of the Labor Code “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 according to the occupational or non-occupational origin of the illness, which is not directly related to the purpose of the law establishing it”.
The Cour de cassation considers that these questions are of a serious nature and deserve to be analyzed by the Conseil Constitutionnel, insofar as in the event of an employee’s absence due to illness :
– Article L. 3141-3 of the French Labor Code excludes all entitlement to paid leave when work stoppage is of non-occupational origin;
– Article L. 3141-5, 5º of the French Labor Code does not allow paid leave entitlement to be acquired beyond an uninterrupted period of one year in the case of work stoppage of occupational origin.
In addition, it specifies that article L. 3141-5, 5° of the Labor Code “treats employees on sick leave differently, depending on the origin, professional or otherwise, of the health situation that justified the sick leave”.
The French Constitutional Council now has three months to rule on the conformity of these provisions with the constitutionally guaranteed right to health and rest, and the principle of equality.
It could censure these provisions and thus force the legislator to intervene.