In the event of dismissal for wilful misconduct, employees now have the right to receive compensatory pay in lieu of vacation

10 March 2016

Alexandra Stocki, Laura Sultan

Until now employees dismissed for wilful misconduct were denied the right to take compensatory pay in lieu of vacation, pursuant to Article L. 3141-26 of the French Labour Code.

A preliminary ruling on the constitutionality of this article was referred to the Conseil Constitutionnel on 2 December 2015.

The decision of the Constitutional court, handed down on 2 March 2016, censures the text insofar as it creates inequality between employees dismissed for wilful misconduct, depending on whether their employer is affiliated with a paid leave fund (in the event of such affiliation the right to take compensatory pay in lieu of vacation was not denied).

This decision takes effect immediately, and may be relied on in all instituted legal proceedings where there has been no final judgement

Currently, the only advantage for employers in using the wilful misconduct option for dismissal is to be able to sue the employee on grounds of civil contractual liability and claim damages (it should also be noted that this is the only grounds on which an employee on strike may be dismissed.)

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