An employer cannot replace an increase of salary due to an employee returning from maternity leave by the payment of an exceptional bonus.

For the first time, the French Supreme Court has issued a ruling concerning the nature of the salary increase due to an employee returning from maternity leave, as required by article L.1225-26 of the French labor code.

In this particular case, an employee requested an increase of salary calculated on the basis of the salary increases which took place within the company during her maternity leave.

The court of appeal dismissed the employee’s claim holding that even though it is correct pursuant to article L.1225-26 of the French labor code, any increase of salary which occurred within the company during the maternity leave must run to the benefit of all employees, including those on maternity leave,in the present case, the employee had agreed to receive the amount corresponding to such increase in the form of an exceptional bonus.  Consequently, the court of appeal held that in such context the employee could not blame the employer for breaching its obligations.

The French Supreme court took a different approach and reversed the court of appeal’s decision, holding that the provisions of article L.1225-6 of the French labor code were a matter of public policy and therefore could not be departed from by the employer, even with the consent of the employee.

The Supreme Court added that in the present case the exceptional bonus granted to the employee constituted a one-off payment which as such would have no impact on the amount of the employee’s remuneration and its evolution and potential future rights, and was therefore different from a salary increase.

As a consequence of the ruling, an employer is required, in the event that salary increases occur during an employee’s maternity leave, to grant the returning employee the benefit not only of the general increases of salary, but also the benefit of the average of the individual increases implemented for employees of the same category, or the average individual increases in the company.

Cass. soc. February 14, 2018 (n° 16-25.323)

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