Social law. Labor law serves to protect pregnant women and women who have recently given birth. This means that every pregnant employee is protected from dismissal from the moment a medical certificate of pregnancy is handed over to the employer by hand or by registered mail, but no later than fifteen days after notification of the dismissal.

However, this protection has a variable geometry. After the probationary period and before the legal date of maternity leave, the protection is called “relative”: the dismissal of a pregnant woman is possible, but only if the employee has committed serious misconduct or maintaining her employment contract is impossible for a reason that has nothing to do with the pregnancy (for example, of course, for a proven economic reason).

During statutory maternity leave and paid leave taken immediately thereafter, including during a break in work due to a pathological condition of pregnancy confirmed by a medical certificate, protection against dismissal is “absolute”: l The employer has no right to terminate the employee’s employment contract, for whatever reason. During a third period of ten weeks, protection is again “relative”.

Absolute protection

The question arose as to the scope of these prohibitions on dismissal imposed on employers within the meaning of Article L. 1225-4 of the Labor Code, which regulates the matter.

The Social Chamber of the Court of Cassation recently clarified that an employer cannot send a summons to a woman for an interview before dismissal during her maternity leave, a period of absolute protection, even if the date of the interview would be set upon his return. even if the termination of the employment relationship is justified for economic reasons (Cass. soc. November 29, 2023 No. 22-15,794).

This expansion of the protection of pregnant women is motivated by a reading of the French texts ” with regard to Article 10 of Directive 92/85 of the European Union of October 19, 1992 » The aim is to improve the safety and health of pregnant employees, those who have recently given birth and are breastfeeding.

In fact, the Court of Justice of the European Communities (now Court of Justice of the European Union) had already ruled in 2007 that this text prevented not only redundancies during that period, but also preparatory measures for those redundancies (ECJ October 11, 2007. Af. C-460/06).

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