Seniority and Complementary Sick Pay: Contract Suspension Does Not Break Seniority

Facts

An employee has been working for several years at a company. During the course of her employment, her contract has been suspended multiple times for various reasons: sick leave, parental leave, and partial unemployment. Although these suspensions are of different natures, they all share a commonality of temporarily interrupting the effective execution of work.

The employee is subsequently on sick leave for a non-work-related illness. She meets the seniority requirements to qualify for the complementary sick pay as outlined in 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 complementary sick pay. They argue that the necessary seniority should be calculated excluding the periods during which the employment contract was suspended. According to the employer, only periods of actual work should be counted when assessing 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 her case before the labour court to obtain payment of the complementary sick pay. She argues that the applicable texts do not provide for any exclusion of the suspension periods in the seniority calculation, and therefore, the entire duration of her employment contract should be taken into account, regardless of potential suspensions.

The court of appeal agrees with the employee’s requests, determining that periods of contract suspension must be included in the seniority calculation for entitlement to the complementary sick pay. The employer then files an appeal to the Court of Cassation.

Legal Issue

The question posed to the Court of Cassation is as follows: Should the periods of suspension of the employment contract be taken into account in the calculation of the required seniority for the entitlement to the complementary sick pay provided for in Articles L. 1226-1 and D. 1226-1 of the French Labour Code?

This question involves determining the scope of the concept of seniority as used by the legislator within the framework of the supplementary compensation system in the event of sick leave. Is it seniority calculated based on actual work performed, or seniority calculated based on the total duration of the employment contract, including suspension periods?

This issue is particularly significant, as many employees experience periods of suspension throughout their careers (due to illness, maternity leave, parental leave, partial activity, sabbatical leave, etc.) and excluding these periods could deprive them of the complementary sick pay even when they meet the necessary contractual seniority.

It should be noted that the Labour Code uses the term seniority in varying ways depending on the provisions. In some cases, it expressly states that seniority refers to actual work (for example, for calculating paid leave rights). In other cases, it does not include any restriction, which raises the question of how to interpret the silence of the text.

The Court of Cassation’s Ruling

In a ruling dated March 25, 2026 (No. 24-22.717), the social chamber of the Court of 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 set the conditions for entitlement to complementary sick pay, do not contain any restrictions in the event of contract suspension. Therefore, the seniority required to benefit from this indemnity cannot exclude suspension periods.

The Court adopts a strict interpretation of the text: in the absence of an express provision excluding periods of suspension from the calculation of seniority, neither the employer nor the judge can add a condition that the legislator did not foresee.

This reasoning is based on the classic principle that restrictions on employee rights must be expressly provided by law and cannot arise from an extensive interpretation of the texts. If the legislator had intended to exclude suspension periods from the seniority calculation for complementary sick pay, it would have expressly stated so, as it has done in other regulatory frameworks.

Therein lies an implicit reminder from the Court regarding the fundamental distinction between suspension of an employment contract, which does not affect the existence of the contractual link, and termination of the contract, which ends the employment relationship. The suspension maintains the employee within the company’s ranks and preserves the acquired seniority unless expressly stated otherwise by law or collective agreement.

This solution is particularly logical, as the complementary sick pay is specifically intended to compensate for the loss of income of an employee on sick leave. Excluding prior suspension periods from the seniority calculation would double penalize employees who have already experienced work interruptions, which would be contrary to the protective nature of the scheme.

Context: Evolution or Confirmation?

This ruling aligns with a well-established jurisprudence of the Court of Cassation concerning the calculation of seniority in social matters.

The social chamber has regularly reminded that seniority, when it conditions the opening of a right, must be assessed according to the precise terms of the text that establishes it. When the text does not distinguish between periods of actual work and suspension periods, the judge must not add additional conditions.

This approach has been applied in other areas of employment law. For example, the Court of Cassation determined that parental leave periods should be counted for seniority at half their duration (Article L. 1225-54 of the Labour Code), unless a more favorable conventional provision applies. Similarly, periods of leave for work-related accidents or occupational illness are expressly treated as actual work time for determining seniority (Article L. 1226-7 of the Labour Code).

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

Some lower courts had held diverging positions; some excluded suspension periods on the grounds that complementary sick pay would be linked 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 solution is also consistent with EU law, which prohibits indirect discrimination based on health status. Excluding suspension periods related to illness from the seniority calculation could indeed constitute such discrimination, penalizing the most vulnerable employees regarding their health.

Practical Implications for Employers

This ruling results in direct consequences for payroll management and human resources.

1. Do Not Exclude Suspension Periods from the Seniority Calculation

The main takeaway is clear: for calculating the seniority required for complementary sick pay (a minimum of one year), the employer must consider the entire duration of the employment contract, including periods of suspension. They cannot deduct periods of sick leave, parental leave, partial unemployment, or any other contract suspension.

2. Verify Payroll Settings

It is essential to check that payroll software is correctly configured regarding this point. Some software automatically calculates seniority by excluding suspension periods, which can lead to processing errors and unjustified deductions from complementary sick pay. An audit of the settings is necessary to ensure compliance.

3. Regularize Past Situations

Employers who have denied the benefit of complementary sick pay to employees by excluding suspension periods from the seniority calculation should consider regularizing those situations. Salary recalls are subject to a three-year prescription period (Article L. 3245-1 of the Labour Code), meaning employees may claim amounts owed for the past three years.

4. Distinguish Between Different Types of Seniority

It is important to remember that the concept of seniority is not uniform in employment law. Depending on the provision in question, seniority may be understood differently. Therefore, employers should adopt a case-by-case approach and verify, for each right conditioned by seniority, what is provided by the applicable text. In the absence of any restriction in the text regarding 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 officers must be informed of this jurisprudence and trained in the seniority calculation rules for various legal and conventional provisions. A miscalculation can lead to costly disputes, both in terms of salary recalls and damages.

FAQ

Is the complementary sick pay owed from the first day of absence?

No. Complementary sick pay is not owed from the first day of absence. According to Article D. 1226-3 of the Labour Code, a waiting period of 7 days applies, unless there is a more favorable conventional provision. The pay is then provided for a variable duration according to the employee’s seniority: 30 days at 90% of gross salary followed by 30 days at 66.66% for employees with between 1 and 5 years of seniority, with these durations increasing in increments of 5 years of seniority. Daily social security benefits are deducted from the complementary pay.

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 related to complementary sick pay. For other rights conditioned by seniority (severance pay, duration of notice period, etc.), it is important to refer to the specific texts governing them. Some texts expressly state that seniority is assessed by 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 that excludes suspension periods?

A collective agreement may provide specific rules for calculating seniority, including for complementary sick pay, provided they are more favorable to the employee than the legal provisions. A collective agreement that excludes suspension periods and results in depriving the employee of access to complementary sick pay when they meet the legal seniority condition (calculated without exclusion) would be inapplicable as being less favorable. The principle of favorability fully applies in this context.

What types of contract suspension are covered by this rule?

The ruling does not differentiate between the different types of suspension of the employment contract. Therefore, all forms of suspension are concerned: sick leave (work-related or not), maternity leave, parental education leave, sabbatical leave, disciplinary suspension, partial work, entrepreneurial leave, etc. The principle is that the suspension of the contract does not sever the contractual link and thus cannot affect the employee’s seniority in calculating complementary sick pay, unless there is an express contrary text.