Twenty-six days to be taken during the year, or by 31 March of the following year at the latest. When it comes to statutory leave, the rules are fairly simple to understand. And to apply? We put the question to Lorraine Chéry, counsel in Arendt & Medernach’s employment law team. Or rather, the questions. We asked her about six allegations concerning the rights of employees during a period of idleness.

Myth no. 1

Employers have the right to impose holiday dates.

FALSE. “This allegation is false. The Labour Code states that ‘in principle, leave is scheduled according to the employee’s wishes, unless the needs of the service or the justified wishes of other employees in the company prevent this.’ So it’s very clear that the employer cannot impose leave, whatever the reason,” replies Chéry. At most, they are entitled to encourage their employees to take their holidays.

There are, however, two “exceptions.” The first is collective leave, as exists in the construction industry. “This collective leave is set by mutual agreement, either with the staff delegation, if there is one, or with the employees.”

The second is extra-legal leave. For example, when an employer ‘offers’ a day off to all employees in addition to the 26 available to them for the year. “This would then be an extra-legal day, and it could be considered that the framework laid down for statutory holidays does not apply, which would allow the employer to impose it.”

Myth no. 2

Even on leave, the employee is obliged to respond to an urgent request.

FALSE: “Statutory leave was introduced to allow employees to rest. So, in principle, no employee, whatever their status, would be obliged to respond to an urgent request while on holiday,” says Chéry, in support of a 2019 decision in which, “for the first time,” the Court of Appeal reiterated this principle in black and white. The employee “on leave obviously could not materially intervene to resolve the problem, just as he was entitled during his leave, even if he was the restaurant manager [...], to disconnect and not be approached during the night by his hierarchical superior in a threatening tone” (Court of Appeal, 2 May 2019, no. 45230 on the roll).

The law of 28 June 2023 on the right to disconnect sets a framework. “The concern,” however, adds Chéry, “is that this law only targets employees who use digital tools for professional purposes. Not the others. But these employees too could be disturbed outside their working hours for one reason or another.”

In practice, the law requires companies to “set up a system to ensure respect for the right to disconnect outside working hours.” However, “the law does not provide for any penalties as such,” i.e., “if the employer breaches the right to disconnect, there are only penalties if he has not set up a system relating to this right,” adds Chéry. These will come into force on 1 July 2026, giving everyone time to adopt new practices.

“The employee could, however, take legal action against the employer for failing to respect the right to disconnect and for breaching the provisions relating to leave and its obligation to ensure the health and safety of its employees.”

It should be noted that the 2023 act still provides that “the employer may, exceptionally, disturb his employee outside working hours. But in this case, the law stipulates that the employer must provide compensation,” adds Chéry. “However, an employee who is disturbed by his employer during his leave, and who does not respond or refuses to act on the order requested, should not incur any penalties. This is the meaning of the case law of February 2024, which reiterates the employee’s right to rest and not to be disturbed outside working hours. ‘During his or her recreational leave, the employee is entitled to rest. During rest leave, he may not follow his work remotely, he may disconnect and in principle he is not obliged to respond to the employer's solicitations’ (Court of Appeal, 8 February 2024, no. CAL-2023-00372 of the roll). In other words, the employee is not prohibited from responding, but he has the right not to do so, and the employer cannot draw any consequences from this refusal.”

Myth no. 3

Employees have the right to work for another employer during their statutory leave.

FALSE: “In principle, employees are not allowed to work for another employer during their holidays, unless specifically authorised to do so. Strictly speaking, the Labour Code does not allow employees to work during their holidays, but it does not prohibit it either. But in my opinion, it should not be done, because allowing employees to work during their holidays would be tantamount to derogating from the right to rest and holidays.”

According to Chéry, “the principle of duplication also arises. The Labour Code doesn’t prohibit people from holding multiple jobs, but it doesn’t say anything about holidays. In my view, during holidays, the employee remains employed by his or her employer. That holiday is therefore tied to that employer, and cannot be used to do another job. Jobs can be juxtaposed, but not mixed.”

The final point: “Loyalty, if the employer is not aware of it,” and “even more so if it’s in a competitive sector.” In that case, the employer could claim serious misconduct.

Myth no. 4

Employees can extend their stay by teleworking from their holiday location.

TRUE: “Provided that the situation has been authorised by the employer or is expressly provided for in the company’s teleworking policy,” it is perfectly feasible to return to work without having to leave the beaches of the Côte d’Azur or the Swiss Alps.

Beware, however, of those who dare to do so without first obtaining the green light: “If there is a lie, the situation could lead to dismissal, particularly if it is expressly forbidden by the company’s teleworking policy, if there is a certain recurrence in this practice on the part of the employee, or depending on the risk he or she is putting their employer at, for example in terms of tax or social security affiliation. There are many circumstances that need to be taken into account in order to qualify as misconduct, but whatever the case, it would at least justify a warning.”

Myth no. 5

The employer can carry out reorganisations in the employee's absence.

TRUE... AND FALSE: “The Labour Code prohibits dismissal during sick leave and maternity leave, except for serious misconduct in the case of the latter. During parental leave, employees are protected against dismissal with notice, but may still be dismissed for serious misconduct. On the other hand, there is no protection for employees on statutory leave. An employee may therefore be dismissed, particularly on economic grounds. On the other hand, employers who are required to attend a pre-dismissal interview will have to be careful, as they will only be able to organise the interview after a certain number of working days have elapsed since the letter of invitation was sent,” explains Chéry.

“As for job cuts and reorganisations, the Labour Code does not prevent them from being carried out during statutory leave or sick leave,” she points out.

“On the other hand, for maternity and parental leave, the law stipulates that the employer must keep the employee’s job or, if this is not possible, a similar job corresponding to the employee’s qualifications and offering at least equivalent pay. Does this mean that the employer could dismiss for reorganisation at the end of maternity/parental leave? That’s for the courts to decide, but the latest trend from the courts would give employers some leeway to abolish a post on return from leave.”

Myth no. 6

Employees who fall ill during their holidays lose their entitlement to leave.

FALSE: “If an employee submits a medical certificate justifying their incapacity for work, they will be credited with as many days of statutory leave as the number of days they were off sick,” explains Chéry.

In the same way, an employee on sick leave continues to earn statutory leave days each month during his or her absence.

This article was originally published in .