Labor Law Newsletter july-august 2026
Case-law section
Day-count fixed-rate agreements (forfait jours): invalidation of the annual day-count agreement and repayment by the employee of RTT days
Where a day-count fixed-rate agreement (forfait en jours) is invalidated, the employer’s claims for repayment of “working-time reduction” (RTT) days must be dismissed if the accrual of those rest days—the taking of which gives rise to remuneration—is not provided for by the collective agreement.
Following this ruling, the Court applies a case-by-case rather than an automatic approach: one must examine what the collective agreement establishing the day-count fixed-rate arrangement actually provides:
- If the collective agreement provides for specific remuneration for the rest days, then the sums must be returned to the employer;
- If the collective agreement does not provide for specific remuneration for the rest days, then no repayment is owed to the employer.
Ruling: Cass. Soc., 3 juin 2026, n°25-13.970
Annualisation of working time – sickness absences reduce the threshold triggering overtime
The calculation of overtime for an employee on annualised working time who is placed on sick leave during a period of high activity follows a precise method laid down by the Cour de cassation in a ruling handed down on 3 June 2026: the annual threshold of 1,607 hours is reduced by the duration of the sick leave, assessed on the basis of the average weekly working time of 35 hours and not on the hours actually removed from the schedule.
Only the hours actually worked beyond this individualised ceiling constitute overtime. This method applies only in the absence of more favourable collective-bargaining provisions: a company-level or industry-level agreement may provide for different treatment of the employee. For employers that operate annualisation of working time, this ruling calls for an immediate review of time-management and payroll settings.
Ruling: Cass. Soc., 3 juin 2026, n° 24-19.545
Works council (CSE) expert appraisal: the employer’s challenge does not suspend the consultation on a collective economic redundancy
A challenge to an expert appraisal decided by the works council (CSE) cannot have the effect of suspending all the consultation time limits under way within the company. This is the reminder given by the Social Chamber of the Cour de cassation in a ruling of 8 July 2026, holding that the suspensive effect attached to the employer’s appeal remains confined to the contested appraisal procedure and does not extend to the consultation on a proposed collective economic redundancy affecting fewer than ten employees over thirty days.
Ruling: Cass. Soc., 8 juillet 2026, nº 25-13.280
Employer’s inexcusable fault (faute inexcusable): the Cour de cassation reverses its position on the burden of proof
It falls to the victim of the occupational disease to prove their exposure to the risk by the employer in question: reversing its previous case law, the Cour de cassation holds that it is for the victim of the occupational disease who brings an action seeking recognition of inexcusable fault to prove that the employer against whom the action is directed exposed them to the risk of their disease.
In this regard, the Court points out that the decision by the CPAM (primary health insurance fund) to accept the occupational disease produces effects only as between the fund and the insured person. It has no bearing on the action seeking recognition of inexcusable fault: it demonstrates neither that the exposure occurred within a specific company nor, a fortiori, the existence of an inexcusable fault.
It therefore falls to the court seised to verify for itself the occupational nature of the disease as well as the reality of the exposure to the risk at the employer being sued.
The Court bases this solution on Article 1353 of the Civil Code, according to which a person who claims performance of an obligation must prove it. It is therefore for the claimant to establish that the disease has one of its necessary causes in the exposure to the risk within the company against which the action is brought.
The ruling does not, however, call into question the possibility of bringing an action against a single employer where there are several successive employers. It simply confirms that the victim will henceforth have to demonstrate that the exposure to the risk actually occurred while in the service of the employer being sued.
Ruling: Cass. Soc., 25 juin 2026, n°23-22.278
Regulatory section
Fuel allowance
In an update dated 6 August 2026, the BOSS (Official Bulletin of Social Security) announced the forthcoming amendment, by decree issued after consultation with the Conseil d’État, for the year 2026, of the social-security regime governing the transport allowance or fuel allowance provided for by the transport allowance or the fuel allowance provided for by Article L. 3261-3 of the Labour Code.
The BOSS announced that the “transport allowance” or “fuel allowance” will be exempt from social-security contributions up to €600 in 2026 and may be combined with the employer’s partial coverage of public-transport costs.
In practical terms, as the Urssaf website specifies, the employer may:
- cover the fuel costs of its employees even where their home or place of work is served by a public collective-transport service;
- pay the fuel allowance even where employees already hold a public-transport season ticket, this coverage being combinable with the contribution towards public-transport season-ticket costs.
Waiver of the return-to-work medical examination after an absence
Following maternity leave, an absence due to an occupational disease, an absence of at least 30 days due to a workplace accident, or an absence of at least 60 days due to a non-occupational illness or accident, the return-to-work medical examination is no longer mandatory, provided that:
- A pre-return medical examination took place within the 30 days preceding the actual return to work, and
- The occupational physician concluded, on the occasion of that pre-return examination, that no accommodation measure was necessary with a view to the return to work.
Texte : Décret n° 2026-503 du 12 juin 2026 relatif aux modalités des visites de pré reprise et de reprise
New provisions of the Act on combating social-security and tax fraud
As indicated in our newsletter last May, the “Anti-Fraud” Act provides for several measures intended to strengthen the fight against social-security fraud.
The Act also contains several other provisions concerning undeclared work (travail dissimulé):
- a new duty of vigilance is imposed on the project owner (maître d’ouvrage) in the event of indirect subcontracting. In the event of a breach, its joint financial liability may be engaged. This measure will enter into force on the date set by decree and, at the latest, on 26 December 2026;
- where an enforcement order (contrainte) is issued following the finding of an undeclared-work offence, it will be provisionally enforceable as of right upon the expiry of a two-calendar-day period. This provision will enter into force on the date set by decree and, at the latest, on 1 January 2027;
- the penalties applicable in respect of undeclared work are also amended, with:
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- the possibility of a reduction in the surcharge rate in the event of prompt payment of the sums due;
- the obligation to repay the public aid received in respect of the last closed financial year.
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Text: Loi n°2026-534 du 26 juin 2026 relative à la lutte contre les fraudes sociales et fiscales
Applications for derogation from working-time legislation
Since 16 August 2026, the administrative authority has a period of 30 days from the date of receipt of an application for derogation to notify its decision where it has been seised of an application for authorisation to exceed the maximum weekly working time, of an application by a company without a works council (CSE) to use flexitime arrangements, or of a derogation from the prohibition on night work for young workers and apprentices under 18 years of age.
In the absence of a reply within this period, silence amounts to an implied decision of acceptance.
Texte: Décret n°2026-775 du 13 août 2026 portant clarification de certaines procédures de dérogation à la durée du travail
Update of the DGT guide on protected employees
The guide has been updated notably with the drafting of two new fact sheets. The first concerns the lawfulness and admissibility of means of evidence in disciplinary matters. The second specifies that a fact external to the performance of the employment contract can justify termination of a protected employee’s contract only if it has a sufficiently relevant connection to the employment relationship.
The guide further specifies that, in the absence of specific provisions on the presumption of resignation, prior administrative authorisation is not required for such termination, since the law provides that a challenge to the termination of the employment contract on the basis of this presumption is brought before the labour tribunal (conseil de prud’hommes), which rules on the nature of the termination and the associated consequences. However, the employer is not required to use this mechanism and always retains the option of dismissing the employee on disciplinary grounds after authorisation from the labour inspector.
Text: Guide relatif aux décisions administrative en matière de rupture ou transfert du contrat de travail des salariés protégés
