Counting Leave in Spain and France
Last May, the Spanish Supreme Court overturned a Court of Appeals ruling on a dispute between Air France and one of its part-time employees regarding the counting of the employee’s paid leave (Cass. Soc., 12 May 2015, No. 14-10.509). The subject of paid leave, an irrefutable right, is not always clear to both employees and employers. Thus, this article will focus on reiterating and comparing current Spanish and French legislation on the subject, as well as addressing specific cases such as the Air France case.
First, in both countries, according to Article 40.2 of the Spanish Constitution and Article L. 3123-11 of the French Labour Code, an employer is required to grant paid leave to its employees. This is an irrefutable right. In Spain, violation of this right may result in a sanction up to 6,250 euros; in France, 1,500 euros or 3,000 euros for any subsequent offenses.
In France, as in Spain, regardless of the type of contract or type of worker, an employee is entitled to two (2) days off per month of work done for the same employer. That is to say, thirty (30) working days off (five weeks) for a full year of work. In France, the recorded year is from June 1 to May 31.
In total, Spanish employees are entitled to a minimum of 22 days of paid leave. Those days must be taken off and cannot be exchanged for any compensation. In France, the number is slightly greater, with a minimum of 25 days paid leave per year of effective work. Paid official holidays must be added to paid leave. Spain has fourteen official holidays, three more days than France.
Note that during his or her paid leave, in both France and Spain, an employee does not have the right to work for another employer or to engage in any remunerated activities.
Regarding part-time employment, in France, a part-time employee has the same rights as a full-time employee. To calculate the number of days of paid leave taken by a part-time employee, first one must take into account the number of holidays, set from the first day on which the employee has worked. Then one must count the working days between the first day and the day of resumed work. In Spain, the number of days of paid leave to which an employee is entitled to is calculated by working days. Thus, as in France, a part-time employee has the same number of days of paid leave as a full-time employee.
However, there are exceptions in both countries. Thus, as was the case with Air France, exceptions exist in collective bargaining agreements for certain sectors or professions and the recent judgment against the company reaffirmed the supremacy of these exceptions to the labour laws in effect. This is the same for both France and Spain. It is therefore important for employers to know the provisions relevant to their industry with regard to paid leave.
Spanish and French laws are thus quite similar. Employers must make sure to stay well informed with known exceptions provided by collective bargaining agreements that correspond to their sector of activity.
Laura Chetail & Nocolás Melchior
