Seniority and Additional Sick Leave Compensation: Contract Suspension Does Not Break Seniority
Facts
A female employee has been employed for several years within a company. During her employment, her contract was suspended several times for various reasons: sick leave, parental leave, or partial unemployment. These suspensions, although different in nature, have in common that they temporarily interrupted the effective execution of work.
The employee subsequently goes on sick leave for a non-occupational illness. She meets the seniority requirements to benefit from the additional sick leave compensation as provided by Articles L. 1226-1 and D. 1226-1 of the French Labour Code, which stipulate a minimum of one year of seniority in the company.
However, the employer refuses to pay this additional compensation. He argues that the required seniority must be calculated excluding the periods during which the work contract was suspended. According to him, only periods of actual work should be taken into account to assess the seniority condition. By applying this calculation method, the employee would not reach the threshold of one year of seniority required.
The employee contests this position and brings the matter before the Conseil de prud’hommes (labour court) to obtain payment of the additional sick leave compensation. She argues that the applicable texts do not provide for any exclusion of suspension periods in calculating seniority and that, consequently, the entire duration of her work contract must be taken into account, regardless of any suspensions.
The Court of Appeal upholds the employee’s claims, considering that periods of contract suspension must be included in calculating the seniority for the benefit of the additional sick leave compensation. The employer then submits an appeal to the Cour de cassation (supreme court).
The Legal Issue
The question posed to the Cour de cassation is as follows: Should periods of suspension of the work contract be included in the calculation of the seniority required for the benefit of the additional sick leave compensation as provided by Articles L. 1226-1 and D. 1226-1 of the Labour Code?
This question involves determining the scope of the notion of seniority as used by the legislator in the context of the compensation mechanism for sick leave. Is it based on actual work, or is it calculated based on the total duration of the employment contract, including suspension periods?
This issue is particularly significant, given that many employees experience suspension periods during their careers (sick leave, maternity leave, parental leave, partial activity, sabbatical leave, etc.) and that excluding these periods could deprive them of the benefit of the additional sick leave compensation while they have sufficient contractual seniority.
It should be noted that the Labour Code employs the notion of seniority variably depending on the mechanisms involved. In some cases, it expressly states that seniority refers to actual work (for example, for the calculation of paid leave rights). In others, it does not include any restrictions, raising the question of the interpretation to be given to the silence of the text.
The Ruling of the Cour de cassation
In a ruling dated March 25, 2026 (n° 24-22.717), the social chamber of the Cour de cassation rejects the employer’s appeal and confirms the position of the Court of Appeal.
The Court states a clear principle: Articles L. 1226-1 and D. 1226-8 of the Labour Code, which establish the conditions for granting additional sick leave compensation, contain no restrictions in the case of suspension of the work contract. Therefore, the seniority required to benefit from this compensation cannot exclude suspension periods.
The Cour de cassation adopts a strict interpretation of the text: in the absence of an express provision excluding suspension periods from the calculation of seniority, neither the employer nor the judge is permitted to add a condition that the legislator has not provided.
This reasoning is based on the classical principle that restrictions on employee rights must be explicitly provided by law and cannot result from an extensive interpretation of the texts. If the legislator had intended to exclude suspension periods from the seniority calculation for additional sick leave compensation, he would have expressly provided for it, as he has done in other provisions.
The Court implicitly reminds of the fundamental distinction between the suspension of the work contract, which does not affect the existence of the contractual relationship, and the termination of the contract, which ends the employment relationship. The suspension of the contract keeps the employee within the company’s workforce and preserves the acquired seniority unless there is an express legal or contractual provision to the contrary.
This solution is even more logical given that additional sick leave compensation aims precisely to compensate for the income loss of an employee on medical leave. Excluding prior suspension periods from the seniority calculation would effectively penalize employees who have already experienced work interruptions, which would contradict the protective spirit of the mechanism.
Context: Evolution or Confirmation?
This ruling fits within a well-established case law of the Cour de cassation concerning the calculation of seniority in social matters.
The social chamber has regularly reiterated that seniority, when it conditions the granting of a right, must be evaluated according to the exact wording of the text that establishes it. When the text does not distinguish between periods of actual work and suspension periods, the judge should not introduce an additional condition.
This approach has already been applied in other areas of labor law. For example, the Cour de cassation has ruled that parental leave periods must be considered in seniority calculations for half their duration (Article L. 1225-54 of the Labour Code), unless otherwise stipulated in a more favorable collective agreement. Similarly, periods of leave due to workplace accidents or occupational illnesses are expressly equated to actual work time for the determination of seniority (Article L. 1226-7 of the Labour Code).
The contribution of this ruling from March 25, 2026, lies in the clarification it provides specifically regarding the additional sick leave compensation mechanism. Until now, the impact of suspension periods on the required seniority for the benefit of this compensation had not been the subject of such an explicit position from the Cour de cassation.
Some lower courts had taken divergent positions, some excluding suspension periods on the grounds that additional sick leave compensation would be linked to actual work performance, while others included them in accordance with the letter of the text. The Cour de cassation puts an end to this divergence by adopting a literal and protective interpretation of the text.
This solution is also consistent with EU law, which prohibits indirect discrimination based on health status. Excluding suspension periods linked to illness from the seniority calculation could indeed constitute such discrimination, penalizing employees who are most vulnerable in terms of health.
Practical Implications for Employers
This ruling has direct consequences for payroll and human resources management.
1. Do Not Exclude Suspension Periods from Seniority Calculation
The key takeaway is clear: for calculating the seniority required for additional sick leave compensation (minimum one year), the employer must take into account the entire duration of the employment contract, including suspension periods. They cannot deduct periods of sick leave, parental leave, partial unemployment, or any other suspension from the contract.
2. Verify Payroll Configurations
It is essential to ensure that payroll software is correctly configured with respect to this matter. Some software automatically calculates seniority by excluding suspension periods, which could lead to processing errors and unjustified deductions from additional sick leave compensation. An audit of the configurations is necessary to ensure compliance with the regulations.
3. Regularize Past Situations
Employers who have denied additional sick leave compensation to employees by excluding suspension periods from the seniority calculation should consider regularizing these situations. Salary recalls are subject to a three-year limitation period (Article L. 3245-1 of the Labour Code), which means that employees can claim the amounts owed for the last three years.
4. Distinguish Between Different Types of Seniority
It is important to note that the notion of seniority is not uniform in labor law. Depending on the mechanism considered, seniority can be understood differently. Therefore, employers must take a case-by-case approach and check what the applicable text provides for each right conditioned by seniority. In the absence of express provisions on excluding suspension periods, it is prudent to include them in the calculation.
5. Train Payroll Administrators and HR
Payroll administrators and human resources managers should be informed about this case law and trained on the rules for calculating seniority for various legal and contractual mechanisms. A calculation error can lead to costly litigation, both in terms of salary recalls and damages.
FAQ
Is the additional sick leave compensation due from the first day of leave?
No. The additional sick leave compensation is not due from the first day of leave. Pursuant to Article D. 1226-3 of the Labour Code, a 7-day waiting period applies unless a more favorable collective provision exists. Compensation is then paid for varying durations according to the employee’s seniority: 30 days at 90% of gross salary, then 30 days at 66.66% for an employee with between 1 and 5 years of seniority, these durations increasing at increments of 5 years of seniority. Daily allowances from social security are deducted from the additional compensation.
Does this rule also apply to seniority required for other rights (severance pay, notice period, etc.)?
The solution adopted by the Cour de cassation is specific to Articles L. 1226-1 and D. 1226-8 of the Labour Code related to additional sick leave compensation. For other rights conditioned by seniority (severance pay, notice period duration, etc.), it is necessary to refer to the specific texts governing them. Some texts expressly stipulate that seniority is assessed taking into account certain suspension periods (for example, leaves due to workplace accidents), while others remain silent. Caution dictates that, in the absence of express restrictions, suspension periods should be included in the calculation, in line with the reasoning adopted by the Court in this ruling.
Can the employer invoke a collective agreement excluding suspension periods?
A collective agreement may provide specific rules for calculating seniority, including for additional sick leave compensation, provided they are more favorable to the employee than the legal provisions. A collective agreement that would exclude suspension periods and result in the employee being deprived of the benefit of additional sick leave compensation while meeting the legal seniority condition (calculated without exclusion) would be deemed unenforceable as it is less favorable. The principle of favorability fully applies in this matter.
What types of suspension are covered by this rule?
The ruling does not distinguish between different types of work contract suspension. Therefore, all forms of suspension are concerned: sick leave (occupational or non-occupational), maternity leave, parental education leave, sabbatical leave, provisional suspension, partial activity, leave for business creation, etc. The principle is that the suspension of the contract does not break the contractual link and cannot thus reduce the employee’s seniority for the calculation of additional sick leave compensation unless expressly stated otherwise.