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.

I. Facts and procedure

An employee hired on October 7, 2013 in a company as an internet project manager, most recently performed the functions of marketing manager.

Due to maternity leave and paid leave taken by the employee, her employment contract was suspended from September 8, 2017 to January 24, 2018.

However, by letter dated January 16, 2018, while the employee's protection period was still in force, her employer summoned her to an interview prior to dismissal set for April 10, 2018.

By a judgment rendered on March 3, 2022, the Paris Court of Appeal did not grant the employee's requests to recognize the nullity of the dismissal for economic reasons.

This is why the employee appealed to the Court of Cassation on the basis of article L.1225-4 of the labor code according to which, “No employer may terminate the employment contract of an employee when she is in medically certified state of pregnancy, 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 the leave maternity leave as well as during the ten weeks following the expiration of these periods.

II. Means

In fact, the employee complains about the decision of the Court of Appeal to dismiss her request for nullity of the dismissal for economic reasons, arguing in view of article L.1225-4 of the labor code cited above above, that the employer is prohibited from notifying a decision of dismissal during periods of pregnancy and suspension of the employment contract for maternity leave.

The employee also argues that, in application of this same provision, the employer is prohibited from taking preparatory measures for any dismissal decision.

However, in this case, the invitation to the interview prior to dismissal was sent on January 16, 2018 while the protection period ended on April 6, 2018.

In addition, the staff representatives were consulted on January 12, 2018 on the proposed dismissal for economic reasons concerning the position occupied by the employee.

III. 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)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

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