How to take a sabbatical and suspend his employment contract to temporarily leave his business without having to resign. Terms and duration of the sabbatical leave subject to the legislation of the Labor Code.
often called, improperly, sabbatical, sabbatical leave is a type of long service leave under the Labor Code (Article L3142-91). It entitles an employee to leave his business for a certain period during which the employment contract is suspended: the employee does not have to go to work and, in return, he receives no salary.
After the leave, the employee may return to work at finding his previous job or a similar job with a salary at least equivalent.
In practice, employees who leave on sabbatical are the most often to travel from or live abroad. But it is also possible to take a sabbatical leave for other reasons, such as starting a business, for example.
The advice of Eric Roig, founding director of droit-finances.net
To apply for sabbatical leave, the employee must meet several conditions:
- It must have at least 3 years of seniority in the company and at least 6 years of professional activity;
- During the past 6 previous years in the business, it should not have received a first sabbatical leave, study leave or leave for business creation more than six months.
- It must commit not to exercise concurrent activity to that of his employer during the sabbatical.
Although the sabbatical is often called "sabbatical", its duration is necessarily less than one year. The Labor Code and the period of leave can not exceed 11 months sabbatical leave can not be extended beyond this period. The minimum duration of the leave is in turn fixed to 6 months.
Warning: the employee who wishes to end his leave before the scheduled date may not invoke any right to be re-used before the expiry of the leave.
Application and Approach
The employee must first submit a request for sabbatical leave (See our sample letter) to his employer. This letter must be sent by registered mail with return receipt. The project should be announced well in advance, since the sending of the application must be at least 3 months before the departure date in desired leave.
The employer can not oppose the request of the employee, the sabbatical leave is a right recognized by law.
However, in order to anticipate the absence from work over a long period, the company may postpone his departure by pushing it up to 6 months from the date of receipt of the registered letter sent by the employee. In companies with less than 300 employees, maximum period of postponement is extended to 9 months.
These deferrals do not need to be justified by the employer.
The employer can postpone the employee until the total number of employees in long-term absence is less than 2% of the workforce.
In companies with less than 200 employees, this condition takes into account the total number of days of absence for the number of working jous made during the previous twelve months.
In companies with less than 200 employees, after consulting the works council or staff representatives, the employer may refuse the request of the employee sabbatical justifying that his departure would be detrimental to the smooth running of the business.
The employee then has a period of 15 days to contest the refusal of sabbatical leave before the Industrial Tribunal.
In principle, the employee can not benefit from maintaining his salary during his sabbatical. However, a collective agreement may possibly provide a partial retention of his remuneration.
The employee who does not have the salary continuation can still finance its sabbatical using his time savings account (CET) if he has one.
The employee can work in another company or start his own business during the period of leave, subject to its obligations of loyalty and non-competition vis-à-vis his employer.
The employee may resign during his sabbatical. A condition, however, respect his notice period.
Sabbatical leave does not preclude the dismissal of the employee by the employer. If the conditions of labor law are met, it may dismiss him for personal reasons (because, for example, a fault committed by the employee before his leave) or for economic reasons. The dismissed employee on sabbatical leave is not entitled to compensation in lieu of notice, the employee is unable to perform it (stop No. 14-26359 made by the Social Chamber of the Supreme Court on September 22 2016).
The employee's absence during his sabbatical period is not taken into account in the calculation of his holiday pay or seniority.
On his return from sabbatical leave, the employee must return to her previous job or at least a similar job. He can not suffer pay cuts over the compensation he was receiving before he left. On the return of the employee in the company, the employer must also offer her a job interview. This interview is devoted to career prospects of employees, particularly in terms of qualifications and employment.
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