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France: Supreme Court reasserts its position regarding Leave Requests

Author: Florence Bacquet

In a 6 April 2022, decision, the French Supreme Court deemed that there is tacit consent on the employer’s part where said employer does not respond to a request for time-off and the employee may consider that his or her request has been accepted. Therefore, no disciplinary measure may be taken.

In this case, an employee had received two letters of warning before being let go for gross misconduct. The employer argued that employees are not entitled to unilaterally decide which days off they are going to take.

Whilst true, this was not in fact the issue. Employees are not entitled to forcefully decide to take time off. If there is no agreement applicable to these matters within the company, it is the employer’s prerogative to determine paid-leave periods and the order in which employees take their time off. Employees who are absent without prior authorisation may be the object of disciplinary action.

The nuance that case law brings to this general principle relates to the manner in which prior authorisation from the employer may be given or considered to have been given. Consent to time off may be tacit, therefore employers who intend to refuse leave requests should do so formally.

Although not a legal requirement, refusing time-off requests in writing may be preferable for proof purposes.

If there has been no refusal, the employee who took time off in good faith did so legitimately as he or she was entitled to consider that the employer had agreed.

Key Action Points for Human Resources and In-house Counsel

In order to avoid the risk of employees taking time off that the employer did not consent to – but the benefit of which the employer did not expressly refuse – it may be worthwhile to include a written provision in a binding document, such as the company’s internal regulations, making prior express consent a requirement before taking any days off.