France: Paid Leave – Who Bears the Burden of Proof?

A recent decision by the French Supreme Court (“Cour de cassation”) offers a reminder to employers that they have an obligation to enable employees to take their paid leave entitlements and the importance of documenting this.

In the case at hand, after the termination of his employment contract, an employee working as a sports instructor, claimed compensation for paid holidays which he argued he had not taken. The employer, on the other hand, argued that the employee had already taken his paid leave from 9 to 30 June 2014, as was mentioned on his pay slip. Claiming to have worked on those days, the employee appealed to the labour court and provided certificates from two of his colleagues stating, among other things, that he was present at the stadium on 28 June.

Despite these certificates, the employee’s claims were dismissed by the Court of Appeal, which found that the documents did not provide “sufficient evidence of work during this period”, as the two certificates stating that the employee was present at the stadium on 28 June, i.e. on a weekend day, could just as well relate to a voluntary participation to follow his team.

The Supreme Court struck down the appellate decision, criticising the Court of Appeal for having reversed the burden of proof in terms of taking paid leave.

The social chamber of the Cour de cassation reiterated that it is the employer who must prove that paid leave was actually taken, not the employee. In the event of a dispute, employers cannot simply show that they have paid their employee (by producing pay slips). They must also prove that they have taken the necessary measures to ensure that employees actually take their paid leave.

Key Action Points for Human Resources and In-house Counsel

Employers must be diligent in carefully documenting paid leave taken by employees and must also be able to prove that the measures have been implemented to allow employees to take said leave. For instance, by presenting corroborating evidence documenting an employee’s acceptance of paid leave requests, the measures taken to cover the employee’s absence, etc. Merely producing a pay slip is not sufficient.