The legal background

Under French employment law, pregnant employees enjoy particularly strong protection from dismissal — dismissal of pregnant employees is prohibited from the moment the employee is medically certified as being pregnant, except in the two following circumstances: gross misconduct on the part of the employee or impossibility to maintain the employment contract for a reason unrelated to the pregnancy or to the employee’s behavior. Any dismissal notified in breach of this protection will be treated as null and void.

More specifically, the Labour code provides that the dismissal of an employee is null and void when, within 15 days of notification of such dismissal being given to the employee, the employee sends the employer a medical certificate attesting to her pregnancy.

In this context, it is necessary that the medical certificate attests that the employee was actually pregnant at the time of the dismissal or is it sufficient to send a medical certificate stating that she became pregnant within 15 days of her dismissal?

The case

In the present decision of the Supreme Court dated July 2, 2014, an employee, who was dismissed by letter dated 15 October, sent to the employer on 30 October a medical certificate indicating that her pregnancy had begun between 16 and 30 October, i.e. at a date which was after the date of the notification of the dismissal. As the employer maintained the decision of dismissal, the employee lodged a claim before the employment tribunal requesting that the dismissal be held null and void.

Both the employment tribunal and the Court of Appeal held that the employer did not violate the law by failing to rescind the dismissal. In its decision, the Court of Appeal ruled that the dismissal should not be affected by the pregnancy arising after the termination of the employment contract. Implicitly, the judges interpreted the law as to limit the protection to situations where the employee is already pregnant at the time of the dismissal.

The Supreme Court’s ruling

The Supreme Court reversed the decision of the lower courts and held that the Court of Appeal violated the law by adding a condition which was not provided for in the text of the Labour code. According to the Supreme Court, the fact that the employee was not pregnant at the time of her dismissal is irrelevant in determining whether or not she can require her dismissal to be cancelled. Therefore, the only requirement is to prove that the employee sent a medical certificate attesting her pregnancy within 15 days of the dismissal, regardless of the fact that she was not actually pregnant at the time of dismissal.

Perspective

This decision adopted a strict, even literal, interpretation of the protection against dismissal granted to pregnant employees. Indeed, the protection traditionally applies in cases where the employee is already pregnant at the time of dismissal since the purpose of the protection is to protect pregnant employees against dismissal. This decision can thus be viewed as departing from the traditional meaning and purpose of the protection.

However, this ruling remains consistent with current case law that tends to assess very broadly the extent of the protection granted to pregnant employees. Thus, given the potential sanctions resulting from the cancellation of a dismissal, the employer should be cautious and ensure that it rescinds its decision of dismissal and subsequently reinstates the employee in case it is informed of her pregnancy through a medical certificate sent within 15 days of the dismissal. In addition, it should also be noted that, even in the case where  the employee has not informed the employer of her pregnancy, it is still possible to request the cancellation of the dismissal if it is proven that the employer was aware of the pregnancy at the time of dismissal.

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