What is the impact of partial operation on paid leave and RTT?
Many of you have different questions about the impact of partial activity on paid leave and RTT (additional days off per year under the French reduced working time legislation).
We bring you a few answers, through a Questions/Answers list.
I. PAID LEAVE
Does an employee who is partially unemployed continue to acquire paid leave during this period?
One of the first questions that may arise is the acquisition of paid leave during a period of partial activity, whether it is a reduction in working time or a total activity cessation.
Article R 5122-11 of the Labour Code expressly states, in its last paragraph, that "all hours worked out are taken into account when calculating the acquisition of paid leave rights."
The employee therefore acquires paid leave, whether it is partial unemployment with:
- Closed for full weeks;
- Or reduction of the daily or weekly schedule.
Can an employee impose on the employer the change in his paid leave dates that would coincide with a partial activity period?
The employee cannot demand the postponement of the paid leave already laid which will therefore have to be taken, even if it coincides with the period of confinement and/or a period of partial activity in the company. The employee will benefit from a paid leave allowance calculated according to the conditions of common law, i.e. according to the rule of tenth or salary maintenance.
Can the employer unilaterally change the dates of paid leave or impose paid leave?
1. About changing dates of paid leave
The employer may change the dates of employees' paid leave by meeting the deadlines provided by collective enterprise or establishment agreement. If no agreement is reached, the time to change leave dates is one month, except in exceptional circumstances (Article L 3141-16 of Labour Code).
Subject to the advice of the courts, it may be thought that the health crisis related to the coronavirus outbreak could allow the employer to change the leave dates without meeting the one-month deadline. However, we must remain cautious regarding the particular situation we are experiencing and the Ordinance 2020-323 of March 25th, 2020 concerning emergency measures relating to paid leave, working hours and rest days under the Emergency Act 2020-290 of March 23rd, 2020..
It allows the employer to defer the dates of paid leave already set within the limit of 6 working days and respecting that a one-day notice period.
This provision is nevertheless conditioned by the conclusion of a majority collective agreement of a company or, failing that, of a branch, authorising it.
2. About setting of paid leave
Paid leave is within the employer's management power, which does, however, set it up in accordance with a procedure and deadlines. This formalism does not allow it to impose on employees taking these paid leave on the coming month.
However, the Ordinance no 2020-323 of March 25th, 2020 providing emergency measures for paid leave, working hours and days off, allows to derogate by collective agreement from the procedures for setting leave, including public order.
It allows, subject to a collective agreement, to impose the employee the taking of acquired paid leave, even before the period opening during which they are normally intended to be taken.
This derogatory agreement will can determine:
- The number of paid leave days that the employer can impose or change, without exceeding the mandatory limit of 6 working days (it is possible to reduce this number but not increase it);
- The notice period for employees by the employer, which cannot be less than one clear day (it is only possible to increase it), thus replacing the statutory deadline of one month in principle.
Without the conclusion of such an agreement, it is not possible to impose on employees the taking of paid leave that has not yet been fixed.
However, the employer may offer and encourage them to do so, including reminding them of the compensation rules and telling them that paid leave that has not been used before May 31st will not be postponed and, as a result, will be lost (subject to having taken the necessary steps to communicate to staff the periods of leaves and deadlines).
What is the fate of paid leave not taken before May 31st?
In principle, an employee who has not taken his acquired leave loses his right and cannot claim any compensatory allowance for that, unless he has been unable to take his leave because of the employer.
It is up to the employer to take the necessary measures to ensure that the employee has the opportunity to effectively exercise his right to leave, and, in the event of a challenge, to justify that he has performed the due diligence legally incumbent upon it..
The employer must inform the employees of the taking leave period and communicate the order of leave to each employee; if it has properly fulfilled its information obligations, leave not taken by employees will be lost, unless there is a more favourable agreement to defer it (Cass. Soc. 13-6-2012 No. 11-10.929; Cass. soc9-5-2019 No. 17-27.448).
II. REGARDING RTT OR JRTT
The question that may arise in this area may be: Does an employee in partial activity continue to acquire RTTs?
The answer differs depending on what is provided by the collective agreement establishing the arrangement of working time.
Indeed, the conditions for acquiring rest days must, in the absence of legal provisions, be specified in the collective agreement. It should therefore be referred to. Two modalities are possible:
> An acquisition logic
Without more favourable conventional stipulations, these days and half days of rest are acquired by completing a working period of between 35 and 39 hours per week, up to the actual hours worked (or hours not worked as actual work for the acquisition of rest days).
Thus, except when they are equated with actual work (such as the delegation hours of staff representatives or absences related to a mandate as administrator of a social security agency), absences of all kinds (public holidays, paid holidays, sick leave, family event leave...), if they result in the hours of work during the week concerned falling below 35 hours, do not allow the acquisition of any right to rest for the week in question.
On the other hand, they have no impact on the number of rest hours already acquired by the employee, no compensation taking place from one week to the next.
Circ. DGEFP/DRT 2000-07, Dec 6th 2000
Thus, one might think that an employee placed in partial activity, if the duration of his working time is less than 35 hours, will not acquire RTT.
> A flat-rate logic
The agreement or collective agreement may also provide for other modalities for considering periods of absence provided they are at least as favorable.
In this second hypothesis, the number of days or half-days of rest is determined at the beginning of the year. In this case, it is appropriate to count the theoretical duration of work by reference to a typical situation of an employee who has a basic right, for example a right to full paid leave, by providing either an average of public holidays not worked or the number of public holidays not worked in the year under consideration. Absences during the year are without impact on the number of days acquired. On the other hand, the absence on a day when the employee should normally have been off duty does not defer the employee.
In this logic of flat-rate acquisition, it can be thought that the number of days of RTT will not be reduced by partial activity, whether it is a reduction in working time or a total cessation of the employee's activity.
ZOOM on employees whose working time is determined on days:
The two assumptions presented above apply to those employees.
Indeed, the collective agreement may provide a flat-rate number of rest days related to the basis of day or a number of rest days calculated according to the actual working time.
> Cases where the collective agreement provides for a flat-rate number of days off related to the working time on days:
According to the Article L. 3121-50 of the Labour Code, only the hours lost as a result of the closure of the company due to bad weather, force majeure or bridge can be recovered. This article is applicable to employees working time on days.
Therefore, when the working time on days is coupled with the granting of fixed rest days per year compensating for this working time on days, the employer cannot have the employee's sick days recovered on the rest days, as this amounts to recovering the hours lost or the assumptions expressly and limitedly provided by the labour code.
> Cases where the collective agreement provides that the number of rest days is calculated according to the actual working time:
When the collective agreement provides that the acquisition of the number of rest days granted to employees on a working time on days is granted according to the actual working time in the year, the number of rest days, in case of absence due to illness or for any other cause, is reduced in proportion to the absence. This is not a recovery of sick days prohibited by law because there are no withdrawals of as many rest days as absence days but there is a calculation of the right to rest days proportionately affected by absences not equated with actual working time. The Court of Cassation has accepted the validity of such clauses.
(Cass. soc., Dec. 16, 2015, No. 14-23.731, No. 2244 FS - P-B - R - I).
Therefore, as an example if the collective agreement on the working time on days provides for 218 days worked per year with 8 days of RTT related to the working time on days and specifies that the number of rest days is a function of the actual working time in the year, it takes an absence of 27 days (218/8) for a rest day to be withdrawn.
In conclusion, about the impact of partial activity on the acquisition or proratisation of RTT, it is appropriate to refer to what your collective agreement provides.
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