French Employment law - Maternity leave: prohibition on sending a summons for a prior dismissal interview during this leave

In law, no employer can terminate the employment contract of an employee when she is medically certified as pregnant, during the entire periods of suspension of the employment contract to which she is entitled under maternity leave, whether or not she uses this right, and for paid leave taken immediately after maternity leave as well as during the ten weeks following the expiry of these periods, in accordance with article L.1225-4 of the Code of work.

By a judgment rendered on November 29, 2023, the social chamber of the Court of Cassation ruled on the nullity of a dismissal for economic reasons of an employee whose summons to the prior interview was notified to her during her period maternity leave, on the basis of article L.1225-4 of the labor code.

Solution

Can an employer notify a dismissal and take preparatory measures for this purpose, during the protection period referred to in article L.1225-4 of the labor code?

The Court of Cassation responds in the negative on the basis of article L.1225-4 of the labor code and article 10 of directive 92/85 of October 19, 1992 concerning the implementation of measures aimed at promoting improving the safety and health of pregnant workers, those who have given birth or breastfeeding at work, which prohibits the dismissal of these workers.

Indeed, the Court of Cassation considers “that it is prohibited for an employer, not only to notify a dismissal, whatever the reason, during the period of protection referred to in this text, but also to take preparatory measures to such a decision.”

Consequently, the employee could validly rely on her invitation to a prior interview notified during her protection period and the meeting of staff delegates in order to maintain that the decision to dismiss her was therefore taken in the absence of any objective element coming from characterize this will of the employer.

This is why the judgment of the Court of Appeal is overturned in that it rejects the employee's request to cancel her dismissal.

Source :

Cour de cassation, 29 novembre 2023, Pourvoi n° 22-15.794, Chambre sociale - Formation de section https://www.courdecassation.fr/decision/6566e2ca18106f8318ba9e88

Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)

CHHUM AVOCATS (Paris, Nantes, Lille)

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