The legal context

French employment law provides for comprehensive and extensive protection of pregnant employees. In particular, the dismissal of employees is absolutely prohibited during maternity leave; and is prohibited during pregnancy or for employees having just returned to work following maternity leave (within four weeks following the end of maternity leave) except in case of gross misconduct or impossibility to maintain the employment contract for a reason unrelated to the pregnancy or to the employee’s behavior. Any dismissal notified in violation of such protection will be deemed as null and void.

It is common practice in France for employees to add some periods of holiday following their maternity leave, to spend additional time with their family. However, how does such period of holiday combine with the protection afforded to them during the four weeks following the end of the maternity leave?

The case

In a recent decision of the Supreme Court dated April 30, 2014, an employee decided to take her accrued rights to annual leave following the expiry of her maternity leave. Upon her actual return to work (5 weeks after the end of her maternity leave), she was convened to a pre-dismissal meeting, and then dismissed for personal reasons. The employee then filed a claim before the employment tribunal on the grounds that her dismissal should be considered null and void since she still enjoyed the protection afforded to maternity leave employees at the time of her dismissal.

The Supreme Court’s ruling and its meaning

The Supreme Court upheld the ruling of the Court of Appeal and considered that the four-week protection period following the end of the maternity leave was suspended during the employee’s annual leave, and its starting point postponed to the date of her actual return to work.

The position taken by the Supreme Court was not necessarily predictable given that the French Labor Code provides that the protection runs for a period of four weeks following the expiration of the maternity leave. However, it appears that the Supreme Court has interpreted this provision in such a manner as to grant the employees a readjustment period following their maternity leave.

This could have a significant impact, given the usual practice in France of taking holidays at the end of maternity leave. Following this reasoning, the four-week protection period would only be considered as having expired once the employee has actually worked for a four-week period upon returning to work. However, this leaves open a certain number of questions: are the employees protected during their annual leave? What happens when the employees return to work immediately after the expiry of their maternity leave, but after one or two weeks take some holiday? Could the principle adopted by the court be extended to other leaves taken by employees following their return from maternity leave?

Given the potential sanctions which could be incurred, employers should be very cautious and ensure that an employee has actually worked for a period of four weeks following return from maternity leave (even if maternity leave period itself has been extended by further leaves) before considering that the employee is no longer protected.

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