Paid leave: accumulated untaken leave

Article L.150, exact wording:

"Insofar as the proper functioning of the company requires it, the enjoyment of leave may be delayed or brought forward by a period which, unless the worker concerned agrees, may not exceed three months.

At the worker's request, the right to leave may be carried over to a longer period, which may not, however, exceed two years of actual service. In this case, a minimum leave of eight days, including non-working days, must be taken by the worker in the first year." The text limits the length of the carry-over; it provides for no sanction and mentions neither loss nor forfeiture.

The loss of a right is not presumed. For an employee to lose an acquired right, there must in principle be a text that says so.

But in practice, a "mandatory interpretation" is required, without citing any text or court decision.

Other articles tend to point the opposite way:

• L.114: the paid leave allowance claim remains a preferential claim for two years following the date on which the right was acquired. The Code therefore contemplates that it may still be claimed after it has been acquired.
• L.118: an action for payment of any sum due in respect of work is time-barred after three years.
• L.324: an employer who does not comply with Article L.150 is liable to a fine. If it was the employer who prevented the employee from going on leave, concluding that the employee loses their days would amount to making the employee pay for the employer's fault.

The argument "no carry-over, no payment, therefore loss" is not enough. Another, equally logical conclusion can be drawn: the employer must make the employee take the leave. And if the contract ends, the question of compensation arises, with the uncertainties of Article L.162.

Carrying over leave

By the employer: if the proper functioning of the company requires it, the departure may be brought forward or delayed by three months at most, unless the worker agrees (Article L.150, paragraph 1).

At the worker's request: the right may be carried over for at most two years of service. The worker must then take at least 8 days, including non-working days, in the first year (Article L.150, paragraph 2).

Payment of the allowance

No later than the last day before the start of the leave (Article L.161).

Compensatory allowance

Any agreement replacing leave with an allowance is null and void (Article L.162). The only exception: if the contract is terminated or expires before the worker has acquired the right to enjoy the leave, an allowance calculated on their acquired rights is paid to them immediately.

What about days not taken beyond two years?

Carry-over is an option available to the worker, limited in time: it does not allow days to be accumulated indefinitely. The Code does not expressly state what becomes of days not taken beyond two years. The safest solution remains to schedule leave so as never to reach this limit. An employer who does not comply with the rules of Article L.150 is liable to a fine (Article L.324).

Good practice

From hiring, inform the employee in writing of the carry-over rules. Each year, drawing up a leave schedule and tracking leave balances is the most solution for never reaching this limit.

Conclusion

The "lost days" reading is a possible interpretation, not a written rule, presenting it as a certainty is risky: an employer could rely on it against an employee.

Two options:

Option A: Neutrality

"The Code does not expressly settle the fate of days not taken beyond two years; the safest solution remains to schedule leave so as never to reach this limit."

Option B: Caution.

"The Code limits carry-over to two years, without specifying the fate of days beyond that. Some conclude that they are lost, but no text expressly provides for this. In any case, this reading seems difficult to enforce against the employee when it was the employer who prevented them from taking their leave.". It is essential to explain to the employee, when drafting their employment contract, that:

• The employee loses the benefit of all leave not taken after two (2) years (L.150) of the Labour Code.
• Any leave not taken within two (2) years of its entitlement is lost (L.150).

This is a legal interpretation of the question, notwithstanding the ambivalence on the question.