As is the case in many other countries (particularly countries in the European Union, which are covered by EU Directive 92/85/CEE dated 19 October 1992), France has implemented a full set of rules with the goal of protecting pregnant employees or employees on maternity leave against illegitimate termination of their employment contract. These protections also apply in the context of redundancies.
The rules run to the benefit of all female employees, whether employed on a full time or part time basis, including both those on an indefinite term and fixed term employment contracts. However, application of the protective provisions to employees on a fixed-term contract cannot trigger an extension of the term of the contract.
Protection afforded to pregnant employees and to employees returning from maternity leave
Under French employment law, pregnant employees enjoy a fairly strong protection from dismissal — dismissal of pregnant employees is prohibited from the moment the employee is medically certified as being pregnant (and the employer has been notified thereof), except in the the following two circumstances: gross misconduct on the part of the employee or impossibility of maintaining the employment contract for a reason unrelated to the pregnancy or to the employee’s conduct.
More specifically, the Labour code provides that the dismissal of an employee is null and void if, 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.
Such protection also extends to employees returning from maternity leave. Such employees may not be terminated except in the two situations referred above during a period of 10 weeks from the date they return from legal maternity leave.
Any dismissal notified in breach of this protection will be treated as null and void and the employee may claim reinstatement in the company.
The economic rationale used for the redundancy will not in itself be considered as a legitimate ground for dismissal, even though French courts closely monitor the reasons used by companies to justify economic dismissals. French courts regularly emphasize that employers are required to explain why such difficulties render impossible the maintaining of the employee in the headcount during the protection period. Courts have for example considered that a closure of the entire employing entity could constitute a valid reason for termination of a pregnant employee (provided that this is indicated in the dismissal letter).
Protection afforded to women during maternity leave
During the legal maternity leave period, dismissal of the employee is absolutely prohibited (regardless of the grounds on which such dismissal is based). Under this principle, the view of the case law is that not only is the employer prohibited from notifying the dismissal, but also in addition, the employer cannot implement any “preparatory measure” regarding the dismissal of the employee (in accordance with the provisions of the European Directive 92/85/CEE dated 19 October 1992). Any contravening measure would be deemed null and void.
This may seem a bit severe for employers, particularly in the French context where a few months may pass between the first steps of a redundancy procedure and the actual notification of the dismissals (these few months being punctuated by many “preparatory” measures). However, French courts have fine-tuned their position, holding for example that the recruitment of another employee under an indefinite term contract, or the issuance of an invitation to the employee to an informal meeting regarding her future dismissal is not authorized. Conversely, the proposal of alternative positions to the employee (which is part of the reclassification obligation applying to French employers) is authorized, as reclassification positions may lead to the continuation of employment rather than to a dismissal.
Nevertheless, the frontier between what is authorized and what is not is uncertain so a high degree of care should be exercised in the context of redundancies, where women on maternity leave may be impacted.
