A month away from the first major holiday departures, the vagueness still remains for many French employees as to the date and duration of their summer holidays. While some are ready to give it up to compensate for the loss of earnings resulting from confinement, others simply cannot yet book a rental or train ticket without knowing their exact vacation dates. Many wonder: can the employer impose the dates and the duration of the “long vacation ”? Update with Nicolas Mancret, lawyer specializing in social law within the firm Jeantet, in Paris.
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One month's notice in normal times
Regarding the duration and dates of summer holidays, the rules are set - depending on the company - by the employer according to a company agreement or collective agreement. Or failing that, by the employer himself after consulting the Social and Economic Committee (CSE) (former employee representatives). These rules are contained in article L3141 -16 of the Labor Code.
If the employee has been on summer vacation for a long time, his employer cannot change the duration and dates at the last minute. If he wishes, for all kinds of reasons, the employer must first consult the elected representatives of the CSE and notify his employee more than a month in advance. " Once the employer has set the holidays, he cannot go back on them without respecting a notice period of less than a month, unless there is a more protective branch or company agreement ", reminds Nicolas Mancret lawyer in social law, within the Jeantet law firm.
However, this one month notice may not be respected in exceptional circumstances. As a priori the health crisis that we have just gone through ... " This will be left to the judges. But we can actually think that the Covid-19 health crisis could be invoked as an exceptional circumstance , ”says Nicolas Mancret.
24 hours since the order of March 25
If the activity requires it this summer, the employer can also use another lever, exceptional this one, to impose dates or postpone paid holidays. This is one of the orders adopted by the government on March 25, 2020, which relaxes the rules on leave and working time. " This text provides for the possibility of postponing leave or to require immediate taking with a 24-hour notice period," Nicolas Mancret reiterates. It was designed at the start of confinement to empty the paid vacation counters before setting up short-time working. This rule still exists, until December 31, but requires a company agreement. "
If the employee tells himself that he will then sell off his RTT to ensure vacation this summer, the employer can also legally refuse to ask him. " Thereupon, the order of March 25 gives great freedom to the employer allowing him to postpone taking RTT within 10 days, without the unions ' agreement ," said the lawyer.
Compensation for lost rental
In these circumstances, what can the employee do? Those who have booked a rental but would be deprived of their vacation week at the last minute are entitled to ask their employer for compensation for this damage, the expert said. In addition, if the employee can no longer take 12 consecutive days off during the summer period - between May 1 and October 31 - he can obtain two additional days, (unless a company agreement provides for other provisions), according to article 3141-23 of the Labor Code.
Can the employee oppose his boss' decision to change his summer vacation? Not really. " If the employer has complied with all the rules for postponing summer holidays (ie a consultation of the elected staff, or an agreement with the unions), but the employee refuses: this is considered to be a fault of work, liable to disciplinary action, ”warns Nicolas Mancret.
" Everyone has an interest in seeing economic activity start again," says the social lawyer. For those who have teleworked, it will be complicated to postpone the holidays, the unions considering that the period was tiring. For those whose activity has been completely stopped, depending on the sector, it will be more or less easy to negotiate. "
