The fact that an employee on sick leave for non-professional reasons does not acquire paid leave during this period, as provided for by French law, is not contrary to the Constitution, estimated this Thursday, February 8, the Constitutional Council. For the court chaired by Laurent Fabius, this does not infringe on his rights to rest, leisure and health. Nor does this infringe the principle of equality with respect to an employee on sick leave for professional reasons who acquires days of leave. In short, the French labor code can, in view of its constitutional principles, consider that sick leave does not constitute a “period of actual work”, unlike, for example, periods of maternity leave.
This Thursday’s decision was eagerly awaited, particularly by employers and the government. However, it is of no immediate consequence. Even if they are deemed constitutional, the provisions of the labor code which were attacked will remain inapplicable in the eyes of the Court of Cassation, because they are contrary to European law. Seized of a case brought by the CGT, the latter in fact made a dizzying evolution of jurisprudence on September 13, noting that European jurisprudence ‘makes no distinction between workers who are absent from work on sick leave […] and those who actually worked. She therefore considered that French law cannot exclude sick leave from periods of actual work. And that an employee therefore continues to accumulate paid leave when stopped by his doctor, including for non-professional reasons. Likewise, it considered that in the case of work stoppage caused by a work accident or an occupational disease, it is not possible to limit to one year the period during which the arrested employee continues to acquire rights, as provided for by French law.
In the process, panic spread among employers, with Medef estimating that this change would cost employers two billion euros per year. Following this, the CPME tripled the score, because, according to it, it was also necessary to take into account the retroactivity of complaints to three years. In fact, retroactivity more probably dates back to 2009, the year of entry into force of the Treaty of Lisbon, which made the Charter of Fundamental Rights of the European Union legally binding on which the Court of Cassation relied. Medef’s lawyer, Jean-Jacques Gatineau, also recognized this during the hearing before the Constitutional Council.
In the name of what did we then fight on January 30, before the body chaired by Laurent Fabius, since the law has in fact changed, for the benefit of employees, since the decisions of the Court of Cassation? In the name of the fact that the government has committed since this fall to drawing the consequences of the new case law, by changing the legislation. Barely appointed, the new Minister of Labor, Catherine Vautrin, was questioned on the subject within the National Assembly. She assured that the decision of the Constitutional Council would constitute a “important element” in the thinking of the government, which according to her is working towards legislative development “within the shortest possible time”, in consultation with social stakeholders. Among them, the CGT reacted to the Council’s decision by ensuring in a press release that it “will ensure and do everything possible to ensure that, despite the compliance decision, the government and employers respect the decision of the Court of Cassation and guarantee employees their right to health and rest”. In fact, it is the employers who exert the strongest pressure, as the hearing illustrated.
“We do not know of such a generous system for employees in Europe”
Thus, the lawyers of the main employers’ organizations (Medef, CPME and U2P) did not hesitate to insist on the unsustainable nature, according to them, of such a reversal in jurisprudence. The CPME lawyer affirmed that the sectors which will suffer the most financially are those “cleaning, personal assistance, nursing homes”, “faced with high absenteeism due to illness”, and particularly subject to recruitment tensions. According to him, for the companies that populate these sectors, “the cost of social protection could no longer be bearable if it were to increase further”. Economic arguments downplayed by the lawyer for the applicant, a commercial employee dismissed by her employer in 2019 after five years of leave due to illness or work accident: “The average duration of sick leave is twenty days; work leave of more than six months represents only 4% of sick leave.”
The employers’ lawyers also insisted on the idea that we should not just examine the two articles in question, but consider French law in its entirety. “We do not know of a system of protection for sick employees in Europe that is as generous for employees and as costly for businesses,” argued the Medef lawyer, adding that “it is in the light of this French social specificity that the block of constitutionality must be assessed, not in the light of the texts of the European Union”. To drive the point home, the CPME lawyer estimated that “the high level of compensation for work stoppage takes into account the fact that the sick worker does not normally acquire rights to paid leave”.
“Rest in the square”
Ultimately, it is the purpose of sick leave that is the most crucial debate. “Hypothetically, being on sick leave, [les salariés concernés] are already at rest”, argued Antoine DIanoux, the lawyer for the Mazagran company, the applicant’s former employer. For him, grant CP in addition to sick leave “would amount to granting rest upon rest, rest squared.” In contrast, the applicant’s lawyer, Me Maude Sardais, argued that “the purpose of sick leave is not to rest, but to take care of oneself in order to return fit for one’s position.” With “rest squared, we confuse the notion of convalescence and the notion of rest”, added the lawyer for the CGT Reims, Franck Michelet.
We also, during the hearing, went back in time. “The founding law of 1936 did not make actual work a condition for acquiring paid leave. It’s fundamental,” recalled the CGT Reims lawyer. In fact, as noted by the advisor to the social chamber of the Court of Cassation, Philippe Florès, in the report which led to the referral to the Constitutional Council, a decree implementing the 1936 law establishing the right to paid leave specified that “would not know […] be considered as interrupting the duration of continuous service, nor be deducted from annual leave on sick days. Going back even further in social history, the Medef lawyer unearthed Marx, who in 1875 “opposed the principle “to each according to his work” to the principle “to each according to his needs””, by qualifying the first as “principle of bourgeois law”, he recalled. “Whether we regret it or not, we are in a liberal society of bourgeois law, and nevertheless social,” he professed, believing that “the proposal which is made, to decorrelate the right to leisure with paid leave of the work actually accomplished, is a Marxist proposition which has demonstrated its ineffectiveness. And which is now in force, whether he regrets it or not.