Pregnant employees benefit from specific and extensive guarantees against termination of their employment under French law. In particular, employers are not allowed to dismiss an employee from the moment she is medically certified as being pregnant, excepted in two limited cases: where the employee has committed an act of gross misconduct or if it is impossible to maintain her employment contract for a reason unrelated to the pregnancy or the employee’s behavior. If an employer terminates an employee in violation of such rule, the dismissal will be considered as null and void.
This protection is particularly favorable as legal provisions allow an employee to have her dismissal cancelled provided that she sends to her employer, within 15 days of the notification of dismissal, a medical certificate confirming her pregnancy. The inevitable consequence of such rule is that the employer is required to reinstate without delay the employee dismissed. In this context, what happens when the employer does not immediately propose such reinstatement to the employee?
In a recent decision of the Supreme Court dated 15th December 2015, an employee was dismissed for economic reasons on 20th May 2009. She subsequently informed her employer by registered letter with acknowledgment of receipt dated 4th June 2009 that she was pregnant and requested to be reinstated within the company. Notwithstanding such letter, the employer only sent the employee her reinstatement notification on 16th July 2009 (the letter being received on 20th July). The employee lodged a claim before the employment court on 17th July 2009 so as to be awarded damages as compensation for the illicit termination of her employment.
In this case, the employer argued that its decision to reinstate the employee was not late as it intervened at a time when the employee still received her normal salary as part of her notice period and therefore was still on the company’s payroll. However, the Supreme Court considered such argument to be irrelevant and approved the decision of the appellate judges that the employer had not reacted in a timely fashion and that the employee was entitled to refuse the belated proposal of reinstatement and claim damages for the termination of her employment.
This decision is a reminder of established case law which appreciates quite restrictively the time period granted to the employer to react after the notification of the pregnancy of an employee. Even though the assessment of the time taken by the employer to reinstate an employee seems to be largely dependent on the circumstances of each case, it is strongly recommended to employers to reinstate the employee in her previous position promptly following the notification of the pregnancy. This is especially important as the financial consequences for the company can be quite significant since the employee will be entitled to receive, in addition to damages for the loss of her employment, all the wages she would have received until the expiry of a period of 4 weeks following the end of the maternity leave had she not been dismissed.