Social right. Labor law strives to protect pregnant women or women who have recently given birth. Thus, from the delivery by hand or sending by registered letter to the employer of a medical certificate of pregnancy, at the latest within fifteen days following notification of dismissal, any pregnant employee is protected against dismissal.
This protection, however, has variable geometry. After the trial 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 if it is impossible to maintain their employment contract for a reason unrelated to the pregnancy (for example for a proven economic reason obviously).
During legal maternity leave and paid leave taken immediately after it, including during work stoppage linked to a pathological state of pregnancy certified by a medical certificate, protection against dismissal is “absolute”: l The employer does not have the right to terminate the employee’s employment contract, whatever the reason. During a third period of ten weeks, the protection is again “relative”.
Absolute protection
The question arose as to the extent of these prohibitions placed on employers from terminating the employment contract, within the meaning of Article L. 1225-4 of the Labor Code, which organizes the matter.
The social chamber of the Court of Cassation recently clarified that an employer cannot send a summons for an interview prior to dismissal to a woman during her maternity leave, a period of absolute protection, even if the date of interview would be fixed upon his return, even if the termination of the employment contract is justified for economic reasons (Cass. soc. November 29, 2023 no. 22-15.794).
This extension of the protection of pregnant women is motivated by a reading of the French texts “ in light of Article 10 of European Union Directive 92/85 of October 19, 1992 » aimed at promoting improvements in the safety and health of pregnant workers, those who have given birth or are breastfeeding.
Indeed, the Court of Justice of the European Communities (now Court of Justice of the European Union), already in 2007, had considered that this text obstructs not only dismissals during this period, but also preparatory measures for these dismissals (ECJ October 11, 2007. Aff. C-460/06).
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