Seniority and Supplementary Illness Benefits: Contract Suspension Does Not Affect Seniority

Facts

An employee has been working for several years within a company. During the course of the employment relationship, her employment contract has been suspended multiple times for various reasons: sick leave, parental leave, or periods of partial unemployment. Although these suspensions are of different natures, they share the commonality of temporarily interrupting the actual performance of work.

The employee then goes on sick leave for a non-professional illness. She meets the seniority requirements to benefit from the supplementary illness benefit provided under Articles L. 1226-1 and D. 1226-1 of the French Labour Code, which stipulate a minimum of one year of seniority within the company.

However, the employer refuses to pay this supplementary benefit. They argue that the required seniority should be calculated by excluding the periods during which the employment contract was suspended. According to them, only actual work periods should be taken into account when assessing the seniority condition. By applying this calculation method, the employee does not meet the one-year seniority threshold required.

The employee contests this position and appeals to the labor court to obtain the payment of the supplementary illness benefit. She argues that the applicable texts do not provide for the exclusion of suspension periods from the calculation of seniority, and consequently, the entire duration of her employment contract should be considered, regardless of any suspensions.

The appeals court agrees with the employee’s claims, considering that the suspension periods must be included in the calculation of seniority for the benefit of the supplementary illness benefit. The employer then files an appeal to the Court of Cassation.

Legal Issue

The question presented to the Court of Cassation is as follows: Should the periods of suspension of the employment contract be considered in the calculation of the seniority required for the benefit of the supplementary illness benefit pursuant to Articles L. 1226-1 and D. 1226-1 of the 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 case of illness. Is it based on actual work performed, or is it based on the total duration of the employment contract, including suspension periods?

The stakes are particularly high as many employees experience suspension periods throughout their careers (due to illness, maternity, parental leave, part-time work, sabbaticals, etc.), and excluding these periods could deprive them of the supplementary illness benefit despite having sufficient contractual seniority.

It should be noted that the Labour Code uses the notion of seniority variably depending on the provisions. In some cases, it expressly states that seniority is understood as actual work performed (for example, when calculating vacation rights). In other cases, there are no such restrictions, raising the question of how to interpret the silence of the text.

The Solution of the Court of Cassation

In a decision dated March 25, 2026 (n° 24-22.717), the social chamber of the Court of Cassation dismissed the employer’s appeal and confirmed the position of the appeals court.

The Court stated a clear principle: Articles L. 1226-1 and D. 1226-8 of the Labour Code, which set the conditions for the right to the supplementary illness benefit, do not contain any restriction in the event of suspension of the employment contract. Therefore, the required seniority 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 has the authority to add a condition not foreseen by the legislator.

This reasoning is based on the classic principle that restrictions on employees’ rights must be explicitly provided for by law and may not result from an extensive interpretation of texts. Had the legislator intended to exclude suspension periods from the calculation of seniority for the supplementary illness benefit, this would have been expressly stated, as it has been 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 relationship, and the termination of the contract, which ends the employment relationship. The suspension of the contract keeps the employee within the company’s ranks and preserves the acquired seniority, unless otherwise provided by law or collective agreement.

This solution is even more logical as the supplementary illness benefit is intended specifically to compensate for the loss of income of an employee on sick leave. Excluding prior suspension periods from the calculation of seniority would effectively double penalize employees who have already experienced interruptions to their work, which would contradict the protective spirit of the system.

Context: Evolution or Confirmation?

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

The social chamber has regularly reiterated that seniority, when it conditions the opening of a right, must be appreciated in light of the exact terms of the text that establishes it. When the text does not distinguish between periods of actual work and periods of suspension, the judge should not add 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 towards seniority at half their duration (Article L. 1225-54 of the Labour Code), unless more favorable provisions exist in a collective agreement. Similarly, periods of absence due to occupational accidents or professional illnesses are expressly assimilated to actual work for the determination of seniority (Article L. 1226-7 of the Labour Code).

The contribution of the ruling of March 25, 2026, lies in the clarification provided specifically to the supplementary illness benefit system. Until now, the question of the impact of suspension periods on the required seniority for this benefit had not been addressed as explicitly by the Court of Cassation.

Some lower courts had taken divergent positions, with some excluding suspension periods on the grounds that the supplementary sickness benefit would be linked to the effective execution of work, while others included them according to 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 calculation of seniority could indeed constitute such discrimination, penalizing employees who are more 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 calculating the seniority required for the supplementary illness benefit (minimum one year), the employer must consider the entirety of the duration of the employment contract, including suspension periods. They cannot deduct periods of sick leave, parental leave, partial unemployment, or any other contract suspension.

2. Review Payroll Settings

It is essential to verify 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 supplementary illness benefits. An audit of these settings is necessary to ensure compliance.

3. Regularize Past Situations

Employers who have denied the supplementary illness benefit to employees by excluding suspension periods from the seniority calculation should consider regularizing these cases. Salary back pay is subject to a three-year limitation period (Article L. 3245-1 of the Labour Code), which means that employees can claim amounts due 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 Labour Law. Depending on the provision in question, seniority can be understood differently. Employers should therefore take a case-by-case approach and check what the applicable text provides for each right conditioned on seniority. In the absence of express restrictions in the text regarding the exclusion of suspension periods, caution dictates including them in the calculation.

5. Train Payroll and HR Managers

Payroll managers and human resources personnel should be informed of this case law and trained on the rules for calculating seniority for the various legal and conventional provisions. A calculation error can lead to costly disputes, both in terms of salary back pay and damages.

FAQ

Is the supplementary illness benefit due from the first day of leave?

No. The supplementary illness benefit is not due from the first day of leave. Under Article D. 1226-3 of the Labour Code, a waiting period of 7 days applies, unless more favorable contractual provisions exist. The benefit is then paid for a variable duration depending on 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, with these durations increasing in increments of 5 years of seniority. Daily sickness benefits from social security are deducted from the supplementary benefit.

Does this rule also 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 the supplementary illness benefit. For other rights conditioned on seniority (severance pay, duration of notice periods, etc.), it is necessary to refer to the specific texts that govern them. Some texts expressly state that seniority is calculated taking certain suspension periods into account (for example, absences due to occupational accidents), while others remain silent. Caution dictates that in the absence of express restrictions, suspension periods should be included in the calculation, in accordance with the reasoning adopted by the Court in this ruling.

Can the employer rely on a collective agreement that excludes suspension periods?

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

Which types of contract suspension are covered by this rule?

The ruling makes no distinction between the various types of suspension of the employment contract. Therefore, all forms of suspension are concerned: sick leave (professional or non-professional), maternity leave, parental education leave, sabbatical, precautionary suspension, part-time work, leave for business creation, etc. The principle is that the suspension of the contract does not break the contractual link and therefore cannot reduce the employee’s seniority for the calculation of the supplementary illness benefit, unless expressly provided otherwise.