A restaurant employee is entitled to paid leave from their employer. These days are mandatory regardless of the employment contract. Focus on the days accrued, the reference period, and the calculation of absence for paid leave.
5 weeks of paid leave in the restaurant industry
According to Article L.3141-3 of the French Labor Code, every employee is entitled to paid leave, regardless of their professionalization contract (fixed-term, permanent, temporary), their working hours (full-time, part-time), or their seniority. Each month of actual work entitles you to two and a half working days of leave. This is equivalent to 30 working days (five weeks) for a full year of work.
Thus, the length of paid leave in the restaurant industry depends on the number of months of actual work with the same employer. For example, if an employee has worked for 12 consecutive months with the same employer, they will be entitled to 30 working days of leave.
It should be noted that the reference period for calculating paid leave is generally set from June 1 of the previous year to May 31 of the current year. However, there may be specific provisions in collective agreements applicable to the restaurant industry that may modify these rules.
It is therefore important to refer to the collective agreement applicable to your specific situation to find out the precise rules concerning paid leave in the restaurant industry.
The Labor Code also stipulates that two additional days of leave per dependent child must be granted to female employees or apprentices under the age of 21 on April 30 of the previous year. This leave is reduced to one day if the statutory leave does not exceed six days.
The conditions for acquiring the right to paid leave in the restaurant industry
The reference period
The right to paid leave is acquired during a period known as the "reference year." This period runs from June 1 of the previous year to May 31 of the current year (art. R223-1 of the Labor Code). The vacation days acquired during this period can be taken from June 1 of year N until May 31 of year N+1.
Absences during the reference period
For the purpose of determining the duration of paid leave, the law considers certain periods of absence to be actual working time. This applies to:
- compensatory rest days linked to overtime (art. L223-4);
- maternity, paternity, and childcare and adoption leave (art. L 3141-5);
- leave for family events (art. L 3142-2): birth, marriage or civil partnership, death of a family member;
- individual training leave (art. L 6322-13): professional transition project (PTP), skills assessment leave, economic, social, and union training leave;
- work stoppages for commuting accidents up to one uninterrupted year (Cass. soc. July 3, 2012). A relapse of an accident at work is also considered as actual working time;
- rest days acquired as part of the reduction in working time;
- periods related to the performance of national service.
Please note that absences for personal reasons, unpaid leave days (full-time parental leave, family solidarity leave, full partial unemployment), periods of sick leave, and strike days are not considered as actual work. In fact, they are not taken into account in the calculation of the number of days of leave acquired by the employee.
Note: when the number of working days calculated is not a whole number, following the impact of absences during the reference period, the duration of paid leave is increased to the next higher whole number (for example, 22.5 days of leave are rounded up to 23 days).
The period for taking paid leave in the restaurant industry
The national collective agreement for hotels, cafes, restaurants (HCR) sets the period for taking paid leave between May 1st and October 31st of each year (art. L223-7 of the French Labor Code). However, a branch agreement, a company agreement or an establishment agreement may provide for a different period.
In all cases, the dates chosen must be brought to the attention of employees at least two months before the leave period (art. D3141-5 of the French Labor Code). This communication can be done by posting notices, via the company's intranet, or by means of a memo.
How to organize the order of paid leave departures in the restaurant industry?
To determine the order of leave departures, the employer must take into account, at a minimum, three criteria established by the Labor Code (art. L3141-16 of the Labor Code):
- the beneficiary's family situation, in particular the presence in the household of a child, a disabled adult, or an elderly person with a loss of autonomy;
- the employee's seniority within the organization;
- their activity possible with one or more other employers.
Apart from the criteria provided by the law, other factors may be taken into account, such as the school holiday period or the dates of child custody rights for divorced or separated employees.
Please note: the order and dates of departure set by the employer cannot be changed less than one month before the scheduled date, except in exceptional circumstances.
Paid leave compensation in catering
Paid leave compensation is the responsibility of the employer. It is calculated using two methods:
- the "10th" rule: the paid leave allowance is equal to one tenth of the total gross remuneration received by the employee during the reference period.
- the "salary maintenance" rule: the allowance is equal to the remuneration that the employee would have received if they had worked during their leave.
Once these two calculations have been made, the result most favorable to the employee must be retained (art. L223-11 of the Labor Code).
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