Seniority and Supplementary Sick-Pay in France: Contract Suspension Does Not Break Length of Service (Cass. soc., 25 March 2026, No. 24-22.717)

The Facts

An employee had been working for a company for several years. During the employment relationship, her employment contract had been suspended on multiple occasions, for various reasons: sick leave, parental leave, and periods of short-time work (chômage partiel). Although different in nature, these suspensions all had in common that they temporarily interrupted the actual performance of work.

The employee then went on sick leave for a non-occupational illness. She met the seniority conditions to benefit from the supplementary sick-pay allowance (indemnité complémentaire maladie, the employer’s top-up to statutory sickness benefits) provided for by Articles L. 1226-1 and D. 1226-1 of the French Labour Code, namely at least one year of seniority within the company.

The employer, however, refused to pay this supplementary allowance. It argued that the required seniority must be calculated by excluding the periods during which the employment contract had been suspended. According to the employer, only periods of actual work should be taken into account when assessing the seniority condition. Applying this calculation method, the employee would not reach the required one-year seniority threshold.

The employee challenged this position and referred the matter to the conseil de prud’hommes (labour tribunal) to obtain payment of the supplementary sick-pay allowance. She argued that the applicable legislation does not provide for any exclusion of contract suspension periods when calculating seniority, and that, consequently, the entire duration of her employment contract must be taken into account, regardless of any suspensions.

The Court of Appeal upheld the employee’s claims, holding that the periods of contract suspension must be included in the calculation of seniority for entitlement to the supplementary sick-pay allowance. The employer then lodged an appeal before the Court of Cassation.

The Legal Issue

The question put to the Court of Cassation was as follows: must the periods of employment contract suspension be taken into account when calculating the seniority required for entitlement to the supplementary sick-pay allowance provided for by 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 legislature in the context of the supplementary compensation scheme in the event of sick leave. Is it seniority calculated on the basis of actual work, or seniority calculated on the basis of the total duration of the employment contract, including periods of suspension?

The stakes are all the higher given that many employees experience periods of suspension during their careers (illness, maternity, parental leave, short-time work, sabbatical leave, etc.), and that excluding these periods could deprive them of the supplementary sick-pay allowance even though they can demonstrate sufficient contractual seniority.

It should be noted that the Labour Code uses the concept of seniority in a variable manner depending on the scheme concerned. In some cases, it expressly states that seniority means actual work (for example, when calculating paid-leave entitlements). In other cases, it contains no restriction, which raises the question of how to interpret the silence of the text.

The Court of Cassation’s Ruling

By a judgment of 25 March 2026 (No. 24-22.717), the Social Chamber of the Court of Cassation dismissed the employer’s appeal and confirmed the position of the Court of Appeal.

The Court set out a clear principle: Articles L. 1226-1 and D. 1226-8 of the French Labour Code, which set the conditions for entitlement to the supplementary sick-pay allowance, contain no restriction in the event of suspension of the employment contract. The seniority required to benefit from this allowance cannot therefore exclude periods of suspension.

The Court of Cassation adopted a strict interpretation of the text: in the absence of an express provision excluding periods of suspension from the calculation of seniority, it is not for the employer or the court to add a condition that the legislature did not provide for.

This reasoning is based on the classic principle that restrictions on employees’ rights must be expressly provided for by law and cannot result from an extensive interpretation of the texts. Had the legislature intended to exclude periods of suspension from the calculation of seniority for the supplementary sick-pay allowance, it would have expressly provided for this, as it did in other schemes.

The Court thus implicitly recalled the fundamental distinction between suspension of the employment contract, which does not affect the existence of the contractual bond, and termination of the contract, which ends the employment relationship. Suspension of the contract keeps the employee within the company’s headcount and preserves accrued seniority, unless there is an express legal or collective-bargaining provision to the contrary.

This solution is all the more logical given that the supplementary sick-pay allowance is specifically intended to compensate for the loss of income of an employee on sick leave. Excluding prior periods of suspension from the calculation of seniority would amount to penalising twice over employees who have already experienced work interruptions, which would run counter to the protective spirit of the scheme.

Context: A New Development or a Confirmation?

This judgment falls within a now well-established body of case law of the Court of Cassation regarding the calculation of seniority in employment matters.

The Social Chamber has regularly reaffirmed that seniority, where it conditions the opening of a right, must be assessed in the light of the exact wording of the text that establishes it. Where the text does not distinguish between periods of actual work and periods of suspension, the court must not add a further condition.

This approach has already been applied in other areas of employment law. For example, the Court of Cassation has held that periods of parental leave must be taken into account for seniority purposes for half of their duration (Article L. 1225-54 of the French Labour Code), unless a more favourable collective-bargaining provision applies. Similarly, periods of leave for an occupational accident or occupational disease are expressly treated as equivalent to actual working time for the determination of seniority (Article L. 1226-7 of the French Labour Code).

The contribution of this judgment of 25 March 2026 lies in the clarification it provides specifically for the supplementary sick-pay scheme. Until now, the question of the impact of suspension periods on the seniority required to benefit from this allowance had not been the subject of such an explicit position from the Court of Cassation.

Some lower courts had reached diverging positions, some excluding periods of suspension on the ground that the supplementary sick-pay allowance was linked to the actual performance of work, others including them in accordance with the letter of the text. The Court of Cassation put an end to this divergence by adopting a literal and protective interpretation of the text.

This solution is also consistent with European Union law, which prohibits indirect discrimination based on health status. Excluding illness-related suspension periods from the calculation of seniority could indeed constitute such discrimination, by penalising the employees most vulnerable in terms of health.

Practical Implications for Employers

This judgment carries direct consequences for payroll and human-resources management.

1. Do not exclude suspension periods from the seniority calculation

The main lesson is clear: when calculating the seniority required for the supplementary sick-pay allowance (one year minimum), the employer must take into account the entire duration of the employment contract, including periods of suspension. It cannot deduct periods of sick leave, parental leave, short-time work, or any other suspension of the contract.

2. Check payroll settings

It is essential to verify that payroll software is correctly configured on this point. Some software calculates seniority by automatically excluding periods of suspension, which can lead to processing errors and unjustified deductions from the supplementary sick-pay allowance. An audit of the settings is required to ensure the compliance of processing.

3. Regularise past situations

Employers who may have refused the supplementary sick-pay allowance to employees by excluding periods of suspension from the calculation of seniority should consider a regularisation. Claims for back pay are subject to the three-year limitation period (Article L. 3245-1 of the French Labour Code), which means that employees can claim the sums due for the last three years.

4. Distinguish between the different types of seniority

It is important to recall that the concept of seniority is not uniform in employment law. Depending on the scheme concerned, seniority may be understood differently. The employer must therefore adopt a case-by-case approach and check, for each right conditioned by seniority, what the applicable text provides. Where the text is silent on the exclusion of suspension periods, prudence dictates that they be included in the calculation.

5. Train payroll and HR staff

Payroll managers and human-resources officers must be informed of this case law and trained in the rules for calculating seniority for the various statutory and collective-bargaining schemes. A calculation error can lead to costly litigation, both in terms of back pay and damages.

FAQ

Is the supplementary sick-pay allowance due from the first day of leave?

No. The supplementary sick-pay allowance is not due from the first day of leave. Under Article D. 1226-3 of the French Labour Code, a waiting period (délai de carence) of 7 days applies, unless a more favourable collective-bargaining provision exists. The allowance is then paid for a duration that varies 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 in tranches of 5 years of seniority. Social-security daily allowances are deducted from the supplementary allowance.

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 French Labour Code concerning the supplementary sick-pay allowance. For other rights conditioned by seniority (severance pay, length of notice period, etc.), reference must be made to the specific texts governing them. Some texts expressly provide that seniority is assessed taking into account certain periods of suspension (for example, leave for occupational accidents), while others remain silent. Prudence dictates that, in the absence of an express restriction, suspension periods be included in the calculation, in line with the reasoning adopted by the Court in this judgment.

Can an employer rely on a collective bargaining agreement providing for the exclusion of suspension periods?

A collective bargaining agreement may provide for specific rules on the calculation of seniority, including for the supplementary sick-pay allowance, provided they are more favourable to the employee than the statutory provisions. A collective agreement that excluded periods of suspension and resulted in depriving the employee of the supplementary sick-pay allowance even though he or she meets the statutory seniority condition (calculated without exclusion) would be inapplicable as being less favourable. The principle of favourability (principe de faveur) applies fully in this area.

Which types of contract suspension are covered by this rule?

The judgment makes no distinction between the different types of employment contract suspension. All forms of suspension are therefore covered: sick leave (occupational or non-occupational), maternity leave, parental leave, sabbatical leave, precautionary suspension (mise à pied conservatoire), short-time work, business-creation leave, etc. The principle is that suspension of the contract does not break the contractual bond and cannot therefore have the effect of reducing the employee’s seniority for the calculation of the supplementary sick-pay allowance, unless an express text provides otherwise.