As the summer season approaches, every organisation will have to organise the timing of departure of its employees on leave, by rotation in the majority of the cases. In practice, the widespread approach adopted is often based on the existence of rules (sometimes unwritten) that aim to guarantee a minimum presence in departments, ensuring continuity. The process then develops according to a logic whereby an employee makes a vacation request, which is usually accepted. In the vast majority of cases, this happens fluidly, with mimimal formalities.The apparent simplicity of this process should not, however, obscure the existence of mandatory rules, which it is important to respect. Indeed, the entire process is the employer’s responsibility, both civil and criminal. Any breach of the provisions relating to the right to leave, its duration, the taking of holidays, holiday pay, and paid leave funds can lead to fines (for infringements of the ‘fifth class’, that is, up to EUR 1,500, excluding any recidivism uplift). These can be imposed as many times as there are employees affected by the offence.
Paid leave periodEmployers must fix the period during which the main holiday can be taken for all staff.This necessarily includes at least the period between 1 May and 31 October 31. It is primarily fixed by means of a company or establishment agreement or, failing that, by a sectoral agreement. In the absence of an agreement, it is established by the employer after consulting the Economic and Social Committee (‘ESC’).Since this period must be brought to the attention of employees at least two months before it starts (Article D. 3141-5 of the Labour Code), the information must be publicised to employees no later than 1 March. Consequently, if the holiday period is set unilaterally by the employer, the ESC’s opinion should be collected at the February meeting at the latest.
The order of departures on leaveThe purpose here is to establish criteria allowing individual departure dates to be set, which will decide the order of departures on leave (in other words: who leaves, when and for how long).Here the law also favours fixing the order of departures by formal agreement; priority being given to any company or organisation agreement and, failing that, to any provisions that may exist at the sectoral level.In the absence of a formal agreement, the employer can establish the order of departures unilaterally, but it must then take into account several parameters:
In addition, when the order of departure is established unilaterally by the employer, the ESC must be consulted in advance. It is therefore necessary to explain to the ESC the ways in which the various criteria mentioned above will be taken into account objectively in setting employees’ holiday dates.Given that the order of departure must be communicated to each employee at least one month before their departure (Article D. 3141-6 of the Labour Code), and that the first main holiday can be taken from 1 May, this consultation must take place at the March ESC meeting at the latest. However, there is nothing to preclude employers from consulting earlier on this, by combining consultation on the dates for holiday and the order of departure on holiday at the same meeting.
Changes to the order of departures on leaveHere again corporate (or failing that, sectoral) collective agreements take priority. If there is a formal agreement that addresses the question of possible modifications to the order of departures, its provisions must be respected.If there are no such provisions, the employer can change the order of departures on leave, provided that employees are informed at least one month before the scheduled date of departure. If a change is necessary, obviously it must comply with the criteria for establishing the order of departures described above. Since any changes to leave are also a sensitive subject (the employee may well have already organised reservations, spouse’s leave and childcare), it is advisable not to make such modifications except in the event of real necessity, and also to give proof of the circumstances which led to the decision.Less than one month before the departure date, no changes will be possible, except in exceptional circumstances. This principle is not defined by law, but must necessarily be narrowly defined and will be subject to a judge’s discretion in the event of disputes. For example, the need to replace a deceased employee who was exercising his duties abroad was held to be an exceptional circumstance (Cass., May 15, 2008, No. 06-44.354).