Seniority and Complementary Illness Benefits: Contract Suspension Does Not Break Seniority

The Facts

A female employee has been working for several years within a company. During her employment relationship, her contract has been suspended multiple times for various reasons: sickness leaves, parental leave, and short-time working periods. Despite differing natures, these suspensions all temporarily interrupted the effective execution of her work.

The employee then finds herself on sick leave for a non-work related illness. She meets the seniority requirements to qualify for the complementary illness benefit as per Articles L. 1226-1 and D. 1226-1 of the French Labour Code, which stipulate a minimum seniority of one year within the company.

However, the employer refuses to grant this complementary benefit. He argues that the required seniority should be calculated by excluding the periods during which the employment contract was suspended. According to him, only actual working periods should be counted to meet the seniority requirement. By applying this calculation method, the employee would not reach the one-year seniority threshold required.

The employee contests this position and brings the matter before the labour court to obtain payment for the complementary illness benefit. She argues that the applicable texts do not specify an exclusion of suspension periods in calculating seniority, and consequently, the entire duration of her contract should be taken into account, regardless of any suspensions.

The appellate court agrees with the employee, ruling that the periods of suspension must be included in the calculation of seniority for eligibility for the complementary illness benefit. The employer then appeals to the Court of Cassation.

The Legal Issue

The question presented to the Court of Cassation is: Should the suspension periods of an employment contract be taken into account in calculating the seniority required for entitlement to the complementary illness benefit 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 it is used by the legislator within the framework of the complementary compensation system in case of sick leave. Is it seniority calculated based on actual work performed, or seniority based on the total duration of the employment contract, including suspension periods?

This issue is particularly significant as many employees experience periods of suspension during their careers (sickness, maternity, parental leave, short-time working, sabbaticals, etc.), and excluding these periods could deprive them of the complementary sickness benefit even when they have sufficient contractual seniority.

It is noteworthy that the Labour Code uses the notion of seniority variably depending on the provisions. In some cases, it expressly clarifies that seniority refers to actual work (for example, when calculating paid leave entitlements). In other instances, no restrictions are mentioned, leading to questions regarding the interpretation of the text’s silence.

The Court of Cassation’s Ruling

In a ruling dated 25 March 2026 (n° 24-22.717), the social chamber of the Court of Cassation dismisses the employer’s appeal and confirms the appellate court’s position.

The Court establishes a clear principle: Articles L. 1226-1 and D. 1226-8 of the Labour Code, which set the conditions for entitlement to the complementary illness benefit, contain no restrictions concerning suspension of the employment contract. Therefore, the seniority required to benefit from this allowance cannot exclude suspension periods.

The Court adopts a strict interpretation of the text: in the absence of an explicit provision excluding suspension periods from the calculation of seniority, neither the employer nor the judge is entitled to impose a condition not provided for by the legislator.

This reasoning is based on the classical principle that restrictions on employees’ rights must be expressly provided by law and cannot result from a broad interpretation of texts. Had the legislator intended to exclude suspension periods from the calculation of seniority for the complementary illness benefit, it would have expressly provided for such exclusion, as seen in other provisions.

The Court implicitly recalls the fundamental distinction between the suspension of the employment contract—which does not affect the existence of the contractual link—and the termination of the contract—which ends the employment relationship. Suspension maintains the employee within the company’s workforce and preserves the accumulated seniority, unless expressly contrary provisions exist either in law or through agreement.

This ruling is particularly logical given that the complementary sickness benefit aims precisely to compensate for a loss of income for employees on sick leave. Excluding prior suspension periods from the seniority calculation would doubly penalize employees who have already experienced work interruptions, contradicting the protective spirit of the scheme.

Context: Evolution or Confirmation?

This ruling is part of a well-established case law from the Court of Cassation regarding the calculation of seniority in social matters.

The social chamber has frequently reiterated that seniority, when it conditions the entitlement to a right, must be assessed based on the precise wording of the establishing text. When the text does not differentiate between periods of actual work and periods of suspension, the judge must not impose any additional conditions.

This approach has already been applied in other areas of labour law. For example, the Court of Cassation has ruled that parental leave periods should be counted for seniority at half their duration (Article L. 1225-54 of the Labour Code), unless more favourable contractual provisions exist. Similarly, periods of leave due to work-related accidents or occupational diseases are expressly considered as actual working time for determining seniority (Article L. 1226-7 of the Labour Code).

The contribution of this ruling from 25 March 2026 lies in the clarification provided specifically concerning the complementary sickness benefit scheme. Until now, the question of the impact of suspension periods on the seniority required for entitlement to this benefit had not been addressed so explicitly by the Court of Cassation.

Some lower courts had taken divergent positions, with some excluding suspension periods on the grounds that the complementary illness benefit would relate to actual work performance, while others included them in accordance with the letter of the text. The Court of Cassation resolves this divergence by adopting a literal and protective interpretation of the text.

This ruling also aligns with European Union law, which prohibits indirect discrimination based on health status. Excluding suspension periods related to illness from seniority calculation could constitute such discrimination, penalising employees who are most vulnerable in terms of health.

Practical Implications for Employers

This ruling has direct implications for payroll and human resource management.

1. Do Not Exclude Suspension Periods from Seniority Calculation

The main takeaway is clear: for the calculation of the seniority required for the complementary illness benefit (minimum of one year), the employer must include the entire duration of the employment contract, including suspension periods. They cannot deduct periods of sick leave, parental leave, short-time work, or any other suspension from the contract.

2. Check Payroll Configurations

It is vital to ensure that payroll software is correctly configured on this point. Some software automatically excludes suspension periods from seniority calculations, potentially leading to processing errors and unjustified deductions from the complementary illness benefit. An audit of configurations is necessary to ensure compliance.

3. Regularise Past Situations

Employers who may have denied the complementary illness benefit to employees by excluding suspension periods from seniority calculations should consider regularising those cases. Back pay claims are subject to a three-year limitation period (Article L. 3245-1 of the Labour Code), meaning employees can demand unpaid amounts pertaining to the last three years.

4. Distinguish Different Types of Seniority

It is important to remember that the concept of seniority is not uniform in labour law. Depending on the provision in question, seniority can be understood differently. Therefore, the employer should adopt a case-by-case approach and verify what each applicable text stipulates regarding rights conditioned on seniority. In the absence of any text restricting the exclusion of suspension periods, caution dictates that they be included in the calculation.

5. Train Payroll Managers and HR

Payroll managers and human resource personnel must be made aware of this jurisprudential development and trained on seniority calculation rules for various legal and collective agreements. A miscalculation can lead to costly litigation, both in terms of back payments and damages.

FAQ

Is the complementary illness benefit payable from the first day of absence?

No, the complementary illness benefit is not payable from the first day of absence. According to Article D. 1226-3 of the Labour Code, a waiting period of 7 days applies, unless more favorable collective provisions exist. The benefit is then paid for a variable duration based on the employee’s seniority: 30 days at 90% of the gross salary, followed by 30 days at 66.66% for employees with between 1 and 5 years of seniority, with these durations increasing for every additional 5 years of seniority. Daily benefits from social security are deducted from the complementary benefit.

Does this rule also apply to the seniority required for other rights (severance pay, notice period, etc.)?

The solution adopted by the Court of Cassation is specific to Articles L. 1226-1 and D. 1226-8 of the Labour Code regarding the complementary illness benefit. For other rights conditioned on seniority (severance pay, notice duration, etc.), it is necessary to refer to specific texts governing them. Some texts expressly state that seniority is considered including certain suspension periods (for example, leave for work-related accidents), while others remain silent. Caution dictates that, in the absence of an express restriction, suspension periods should be included in the calculation, in line with the reasoning adopted by the Court in this ruling.

Can the employer rely on a collective agreement excluding suspension periods?

The collective agreement may establish specific rules for calculating seniority, including for the complementary illness benefit, as long as they are more favorable to the employee than legal provisions. A collective agreement that excludes suspension periods and would result in depriving an employee of the complementary illness benefit while meeting the legal seniority condition (calculated without exclusion) would be inapplicable as being less favorable. The principle of favour applies fully in this matter.

What types of suspension are covered by this rule?

The ruling makes no distinction between different types of employment contract suspensions. It thus concerns all forms of suspension: sick leave (work-related or not), maternity leave, parental education leave, sabbatical leave, disciplinary suspension, short-time work, leave for entrepreneurship, etc. The principle is that a contract suspension does not sever the contractual link and therefore cannot result in reducing an employee’s seniority for the calculation of the complementary illness benefit, unless expressly stipulated to the contrary.