Seniority and Supplemental Sick Leave Compensation: Suspension of Contract Does Not Break Seniority

The Facts

A female employee has been employed for several years within a company. During her employment, her work contract has been suspended multiple times for various reasons: sick leave, parental leave, and partial unemployment periods. Although these suspensions differ in nature, they share the common feature of temporarily interrupting the actual execution of work.

The employee then goes on sick leave due to a non-work-related illness. She meets the seniority requirements to receive the supplemental sick leave compensation provided by Articles L. 1226-1 and D. 1226-1 of the French Labour Code, specifically having at least one year of seniority in the company.

However, the employer refuses to pay this supplemental compensation. The employer argues that the required seniority should be calculated by excluding the periods during which the work contract was suspended. According to them, only the periods of actual work should be taken into account when assessing the seniority condition. 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 supplemental sick leave compensation. She argues that the applicable texts do not provide for any exclusion of the periods of contract suspension in the calculation of seniority and that, consequently, the entire duration of her work contract should be taken into account, regardless of any suspensions.

The Court of Appeal agrees with the employee’s requests, considering that the periods of contract suspension must be included in the calculation of seniority for the benefit of the supplemental sick leave compensation. The employer then files for cassation.

The 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 seniority required for the benefit of the supplemental sick leave compensation provided by Articles L. 1226-1 and D. 1226-1 of the French Labour Code?

This question requires determining the scope of the notion of seniority as used by the legislator in the framework of the supplemental compensation scheme in cases of sick leave. Is it a seniority calculation based on actual work, or a seniority calculation based on the total duration of the employment contract, including periods of suspension?

The stakes are particularly significant as many employees experience periods of suspension throughout their careers (sick leave, maternity leave, parental leave, partial activity, sabbatical leave, etc.), and excluding these periods could deprive them of the supplemental sick leave compensation even though they demonstrate sufficient contractual seniority.

It should be noted that the Labour Code uses the notion of seniority variably across different schemes. In some cases, it expressly states that seniority refers to actual work (e.g., for the calculation of paid leave entitlements). In other cases, it includes no restrictions, raising the question of how to interpret the silence of the text.

The Court of Cassation’s Ruling

In a ruling on March 25, 2026 (n° 24-22.717), the social chamber of the Court of Cassation rejects the employer’s appeal and affirms 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 supplemental sick leave compensation, contain no restrictions in the case of a suspension of the employment contract. Therefore, the seniority required to benefit from this compensation cannot exclude periods of suspension.

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 may add a condition that the legislator did not foresee.

This reasoning is based on the classical principle that restrictions on employees’ rights must be expressly provided for by law and cannot arise from an extensive interpretation of texts. If the legislator had intended to exclude periods of suspension from the seniority calculation for supplemental sick leave compensation, it would have expressly stated so, as it has done in other schemes.

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. The suspension of the contract maintains the employee within the company’s workforce and preserves acquired seniority, unless there is an express legal or conventional contrary provision.

This solution is particularly logical given that supplemental sick leave compensation is intended to compensate for the loss of income of an employee on sick leave. Excluding earlier suspension periods from the seniority calculation would effectively double penalize employees who have already experienced interruptions in their work, which would be contrary to the protective spirit of the scheme.

Context: Evolution or Confirmation?

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

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

This approach has already been applied in other areas of employment law. For instance, the Court of Cassation has ruled that parental leave periods must 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 absence due to work accidents or occupational illnesses are expressly equated with actual work time for determining seniority (Article L. 1226-7 of the Labour Code).

The contribution of the ruling of March 25, 2026, lies in its specific clarification of the supplemental sick leave compensation scheme. Until now, the question of the impact of suspension periods on the seniority required for this compensation had not been the subject of such an explicit position from the Court of Cassation.

Some lower courts had taken divergent positions, some excluding suspension periods on the grounds that supplemental sick leave compensation would be linked to the actual execution of work, while others included them in line 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. Indeed, excluding suspension periods related to illness from the seniority calculation could constitute such discrimination, penalizing employees who are most vulnerable in terms of health.

Practical Implications for Employers

This ruling has direct consequences on payroll management and human resources.

1. Do Not Exclude Suspension Periods from the Seniority Calculation

The main takeaway is clear: for the calculation of the seniority required for supplemental sick leave compensation (a minimum of one year), the employer must take into account 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 type of contract suspension.

2. Verify Payroll Settings

It is essential to check that payroll software is correctly configured on this point. Some software automatically calculates seniority by excluding suspension periods, which can lead to processing errors and unjustified deductions from supplemental sick leave compensation. An audit of settings is necessary to ensure compliance with processing regulations.

3. Regularize Past Situations

Employers who may have denied employees the benefit of supplemental sick leave compensation by excluding suspension periods from the seniority calculation should consider regularizing the situation. Salary claims are subject to a three-year limitation period (Article L. 3245-1 of the Labour Code), meaning employees can claim amounts owed for the past three years.

4. Distinguish Between Different Types of Seniority

It is important to remember that the notion of seniority is not uniform in employment law. Depending on the specific scheme considered, seniority may be understood differently. Therefore, employers should adopt a case-by-case approach and verify what the applicable text states for each right conditioned on seniority. In the absence of text silence 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 resources personnel must be informed of this jurisprudence and trained on the seniority calculation rules for various legal and conventional schemes. A calculation error can lead to costly litigation, both in terms of salary back pay and damages.

FAQ

Is supplemental sick leave compensation due from the first day of leave?

No. Supplemental sick leave compensation is not due from the first day of leave. According to Article D. 1226-3 of the Labour Code, a waiting period of 7 days applies, unless a more favorable conventional provision exists. The compensation is then paid 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 an employee with between 1 and 5 years of seniority, with these durations increasing in increments of 5 years of seniority. Daily allowances from social security are deducted from the supplemental compensation.

Does this rule apply to seniority required for other rights (severance pay, notice periods, 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 supplemental sick leave compensation. For other rights conditioned on seniority (severance pay, length of notice, etc.), it is necessary to refer to the specific texts governing them. Some texts expressly provide that seniority is assessed while considering certain suspension periods (e.g., leaves due to work 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 invoke a collective agreement excluding suspension periods?

A collective agreement may provide specific rules for calculating seniority, including for supplemental sick leave compensation, provided that they are more favorable to the employee than statutory provisions. A collective agreement excluding suspension periods that would result in depriving the employee of the benefit of supplemental sick leave compensation while meeting the legal seniority condition (calculated without exclusion) would be unenforceable as being less favorable. The principle of favor applies fully in this matter.

What types of suspensions of the contract are covered by this rule?

The ruling makes no distinction 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, precautionary suspension, partial activity, leave for business creation, etc. The principle is that the suspension of the contract does not break the contractual link and therefore cannot have the effect of reducing the employee’s seniority for calculating supplemental sick leave compensation unless there is an express text to the contrary.