In a CMS article of June 2022, we dealt with the subject of the European "right to rest" and its potential impact on Monegasque law, but recent developments in case law - and legislation - on the "right to rest" in France confirm that this concept is now one of the factors to be taken into account by employers, including Monegasque employers, when it comes to paid leave.
Although the Monegasque legislator has not yet legislated on this concept, the Labour Court has recently recognised the existence of an annual right to rest, relaxation and leisure, based on the European case law developed by the Court of Justice of the European Union (CJEU).
In Monaco, only certain periods of absence are treated as time actually worked and give entitlement to paid leave. This is the case, for example, when the employment contract is suspended for maternity leave or an accident at work. Conversely, employees who are absent from work for non-work-related reasons are not entitled to paid holiday - at least not in Monaco, and not for the time being.
Going much further, and basing itself in particular on the Charter of Fundamental Rights, the CJEU ruled that Member States must guarantee 4 weeks' paid holiday, regardless of whether the employee was absent during the reference period, and regardless of the reason for the absence.
It is precisely on this point that the Monegasque system could be led to evolve, given the path taken by France on this subject, in the light of texts very similar to Monegasque legal provisions.
In several decisions handed down on 13 September 2023, the French Court of Cassation ruled that the provisions of the French Labour Code, because they make the right to paid leave conditional on the performance of actual work, are contrary to European Union law - justifying the exclusion of the application of articles of the Labour Code that do not comply with the European concept of the right to rest.
The immediate practical consequence of these rulings is that French employees off work for non-professional reasons can now claim paid holiday entitlement for the period during which they were off work. The French government announced that it would legislate on the matter - which has now been done - in order to provide employers with greater legal certainty, particularly with regard to the period over which paid holiday can be recalled.
The recent decision of the French Constitutional Council on 8 February 2024, which confirmed that the articles of the Labour Code on the acquisition of paid holiday entitlement only during actual working time were in line with the Constitution, has no practical impact on the case law established by the Cour de Cassation in the autumn, since it was on the basis of higher European standards, and not the French Constitution, that the French system of acquisition of paid holiday entitlement was set aside by the judges.
In any case, since 24 April 2024, France has amended its legal provisions, in particular to (i) take into account periods of absence from work (whether professional or non-professional, and regardless of their duration) in the acquisition of paid leave; (ii) provide for a carry-over period of 15 months for employees who have not been able to take the paid leave they have earned due to illness or accident.
While these French provisions and rulings are obviously not transposable to Monaco - given the sovereignty of the Principality, which is not a member of the European Union - the resurgence of this issue may lead Monegasque judges, who have already enshrined the concept of the "right to rest", to pay particular attention to the observance of this right in relation to employees, particularly in situations of prolonged absence.
It cannot therefore be ruled out that the emergence of this fundamental right will result in the creation of a judicial obligation for employers to guarantee a minimum period of leave even when an employee's absence is not legally treated as time actually worked.
This could have significant practical consequences for Monegasque employers, who could then be ordered to pay damages to employees who have been absent for long periods and who have not benefited from a minimum rest period.
However, compensation for paid holiday should not be affected by this change in regime, as the right to rest is distinct from the right to have untaken paid holiday monetised.
While awaiting clarification from the law or case law on the concept of the right to rest, and above all on its practical consequences for the acquisition of the right to paid leave, prudent employers will be sure to exercise caution in the event of the prolonged absence of one of their employees, in order to deal with the question of the annual right to rest on a case-by-case basis and thus avoid being ordered to pay damages for unfair performance of the employment contract.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.