On September 16, 2026, the French Cour de cassation (Chambre sociale, Formation de section) delivered judgment No. 732 FS-B on pourvoi No. 25-14.826 (ECLI:FR:CCASS:2026:SO00732), published in the Bulletin. It partially quashed the 17 March 2025 judgment of the conseil de prud'hommes de Nevers: an action for compensatory paid-leave indemnity after rupture prescribes three years from that rupture, and leave accrued in non-occupational sickness under Articles L. 3141-5, 7° and L. 3141-5-1 of the Code du travail may be claimed from December 1, 2009, if the statutory carry-over has not expired.
The employee was hired on July 5, 2010, dismissed on June 18, 2021 and sued on June 17, 2024, inside the three-year window. Nevers still refused indemnity for leave before May 31, 2018, reading Article L. 3245-1 as a three-year look-back of wage sums from the rupture. That is the reading the Court reversed.
What changes for a claim filed after dismissal?
Filing in time opens the action; it does not cap the years of leave inside it. Articles L. 3245-1 and L. 3141-28 treat the unpaid fraction as a wage claim that prescribes three years from rupture. Once that door is open, leave accrued during ordinary sickness under L. 3141-5, 7° and L. 3141-5-1, or already-accrued leave that sickness prevented the employee from taking, can go back to December 1, 2009 if it was carried over under Articles L. 3141-19-1 and L. 3141-19-2 and that window has not closed.
Law No. 2024-364 of 22 April 2024 (DDADUE 2) is what put those articles on the books. Article 37-II applies them from December 1, 2009, subject to res judicata and more favourable collective terms. Nevers treated the 2024 statute as unavailable to a 2021 dismissal. The Court held that this refused to apply the texts.
Who can still claim, and on which clock?
Dismissed staff (and heirs or tutors) whose rupture is less than three years old and whose file shows ordinary sick leave, or unused leave sitting through such an absence. A rupture older than three years is prescribed on this holding, even if unused 2009-era days remain on the sheet. Do not mix that clock with the two-year forclusion in Article 37-II for an action in performance of the contract seeking the grant of leave days: that bar ran from April 24, 2024 and closed on April 24, 2026 for employees still in post. This judgment applied L. 3245-1 to compensatory indemnity after rupture, not that forclusion.
| Claimant | Clock | Back-reach |
|---|---|---|
| Dismissed employee, compensatory indemnity | 3 years from rupture (L. 3245-1) | Leave accrued from December 1, 2009, if carry-over has not expired |
| Employee still in post, grant of days (art. 37-II) | 2 years from April 24, 2024 (closed April 24, 2026) | Same 2009 rule, separate procedural bar |
| Either, after carry-over has expired | Clock is irrelevant | No indemnity for those unused days |
How far does the 2009 retroactivity really go?
Accrual during ordinary sickness is two working days per month, capped at 24 working days per reference period (L. 3141-5-1). For the 2009-to-entry-into-force window, extra days cannot lift the employee above 24 working days after counting days already accrued under the former Code. Occupational accidents and diseases stay on the more generous actual-work rule (L. 3141-5, 5°). Apply the paid-leave chapter of the Code du travail, not a five-week rebuild of every sick year.
The limiter is carry-over. L. 3141-19-1 gives 15 months to use leave the employee could not take because of sickness or accident; it starts when, after return, the employee receives the L. 3141-19-3 information. L. 3141-19-2 starts the period at the end of the reference period if, on that date, the contract has already been suspended for at least one year; on return, any remainder freezes until the information is given. No return-to-work letter, or a suspension that runs through to dismissal, is not automatically a 2009 open account. Recompute, then drop days whose 15-month window has closed.
What should HR and employment counsel do this week?
Pull every French termination in the last three years with ordinary sick leave, or unused leave through such an absence. Recalculate L. 3141-5-1 days from December 1, 2009 or the hire date, whichever is later. Apply the 24-day ceiling, then the 15-month carry-over and the L. 3141-19-2 start. Check whether an L. 3141-19-3 notice was issued on return: its absence can keep the carry-over alive. Provision the indemnité compensatrice. Tell payroll that a Nevers-style cutoff at the third year before rupture is no longer safe. Continuous, per-jurisdiction real-time monitoring surfaces this kind of Bulletin holding the moment the Court publishes it.
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Verify which leavers still sit inside the three-year rupture clock, run the 2009 stock through the 24-day and 15-month filters, and brief HR, payroll and employment counsel so the April 2026 in-contract forclusion is not applied to dismissed staff. Watch the remand before the conseil de prud'hommes de Bourges for how first-instance courts quantify the indemnity. Obsidian tracks French leave rulings against the Code du travail so this file does not wait for the next Bulletin to land on a desk.
