Summer holidays : the employer can set the duration and the timing ?

one month of the first major holiday departures, the blur still remains for many French employees as to the date and the duration of their summer vacation. If some are willing to give up in order to compensate for the shortfall resulting from the confinement, others simply can not even book rental or train ticket without the knowledge of precisely their vacation dates. Many of you are wondering : can the employer impose the dates and duration of "major holidays" ? The point with Nicolas Mancret, lawyer specialised in social law with the firm Jeantet, in Paris.

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Concerning the duration and dates of summer holidays, the rules are laid down – by companies - by the employer following a workplace agreement or a collective agreement. Or, failing that, by the employer himself, after consultation of the economic and social committee (CES) (ex-staff representatives). These rules are included in the article L3141 -16 of the labour Code.

If the employee has set his summer holidays for a long time, his employer cannot change the duration and dates at the last minute. If he wants to, for all sorts of reasons, the employer must first consult the elected representatives of the CSE and to prevent its employee more than one month in advance. "Once the employer has established the leave, he can not return to it without respecting a period of notice of less than a month, unless there is an agreement of branch or company is more protective," recalls Nicolas Mancret lawyer in social law at the firm Jeantet.

However, this one-month notice period may not be observed in the case of exceptional circumstances. As a priori the health crisis that we have just been through... " It will be left to the discretion of the judges. But we can think indeed that the health crisis of the Covid-19 can be invoked as an exceptional circumstance, " says Nicolas Mancret.

24 hours since the ordinance of 25 march

If the activity requires it this summer, the employer can also use another lever, an exceptional one, to impose dates or refer to the paid leave. It is one of the ordinances adopted by the government on 25 march 2020, which comes to relax the rules of leave and working time. "This text provides for the possibility of postponing holidays or to impose immediate with a period of notice of 24 hours, recalls Nicolas Mancret. It was imagined at the beginning of the confinement to clear the counters of paid leave prior to implementing the part-time unemployment. This rule still exists, until 31 December, but requires an enterprise agreement."

If the employee said that it will sell its RTT to make sure this summer vacation, the employer may also lawfully refuse to ask. "Thereupon, the ordinance of march 25, gives a very great freedom for the employer to defer the taking of RTT within a period of 10 days, without the agreement of the trade unions," says the lawyer.

Compensation for the rent lost

In these circumstances, what can the employee ? Those who have booked a rental but would be deprived of their week's holiday at the last minute, are entitled to ask their employer for a compensation for this harm, still recalls the expert. In addition, if the employee cannot take 12 days of consecutive holidays during the summer period - between 1 may and 31 October, it can get two additional, (unless a company agreement provides for other provisions), according to the article 3141-23 of the labour Code.

can The employee appeal against the decision of his boss to change his summer holidays ? Not really. "If the employer has complied with all the rules, to postpone to the summer holidays, (namely, a consultation of the elected representatives of the staff, or an agreement with the unions), but the employee refuses : it is regarded as a lack of work, subject to a disciplinary sanction," warns Nicolas Mancret.

" everyone has an interest in the economic activity spread, estimated the lawyer in social law. For those who have télétravaillé, it's going to be complicated to postpone the leave, the trade unions considering that the period has been tiring. For those whose activity has been completely stopped, depending on the sector, it will be more or less easy to negotiate. "

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