In its decision of November 14th, 2019 No. 18-15682, the Court of Cassation (1) ruled on the characterization of indirect discrimination of an employee who is not relocated to her previous job, upon her return from work. parental leave, contrary to the provisions of Article L. 1225-55 of the Labor Code (2).
1) Background and context
Ms. X. is an accountant with Kiosque Or.
She benefits from a parental leave of 2 years and 9 months, at the end of which she returns to the company.
However, the resumption of work does not go as planned: Mrs X. is assigned to "administrative and secretarial tasks", i.e. tasks that do not correspond to her initial level of responsibility.
In the meantime, Mr. Y had been recruited to replace her as an accountant.
The employer had wished to keep Mr. Y on this "unique" position within the company, even after the return of Mrs. X.
In other words, the employee had not found "her previous job or a similar job" upon her return, and that was not going to happen.
2) Moral harassment, the French argument rejected
The employee first attempts to obtain recognition of harassment.
For her, "it is up to the judge to examine all the elements relied on by the employee, taking into account the medical documents possibly produced [...]", which she reproaches him for not having done.
In addition, it is stated in particular that "the employee had her duties changed upon her return from parental leave, which suggested a situation of moral harassment".
The argument does not succeed either in the Court of Appeal or in the Court of Cassation.
The latter considers that "the plea only serves to challenge the sovereign appraisal by the Court of Appeal of the evidence and fact from which it has [...] inferred the absence of precise facts making it possible to presume the existence of 'moral harassment'.
So we had to find another way.
3) Indirect discrimination, the salutary European argument
The employee therefore substantiated her appeal on the existence of "discrimination related to her pregnancy status".
The Court of Cassation welcomes this plea, raising the debate to take into account the "significantly higher number of women than men who choose to benefit from a leave
In the light of this extra-legal data, the judges consider that the employer has infringed the provisions invoked by Mrs X., namely the 'framework agreement on parental leave contained in the Annex to Directive 96/34. Council Directive of 3 June 1996 '.
Indeed, the employee argues that "this framework agreement constitutes a commitment of the social partners [...] to implement, by minimum requirements, measures intended to promote equality of opportunity and treatment between men and women. by offering them an opportunity to reconcile their professional responsibilities and their family obligations "before adding" that the framework agreement on parental leave contributes to fundamental objectives [...], objectives which are linked to the improvement of living conditions and the existence of adequate social protection for workers, in this case those who have applied for or taken parental leave. ".
Thus, the Court of Cassation concluded that the Court of Appeal should have investigated whether "the decision of the employer [...] to entrust the employee, upon return from her parental leave, only administrative and secretarial tasks" unrelated to his former accounting duties was not an indication of the existence of indirect discrimination on the ground of sex and whether that decision was justified by objective factors unrelated to any discrimination ".
The expected is inspired by one of the last decisions judgments of the Court of Justice of the European Union.
In fact, the latter had considered that the rules which allow the dismissal he enjoys part-time parental leave "is calculated" on the basis of the reduced remuneration he receives when the dismissal takes place ".
The CJEU pointed out two elements in support of its decision: on the one hand, the regulation is intended to apply in "the situation where a considerably higher number of women than men choose to benefit from parental leave. part-time "and, on the other hand," the resulting difference in treatment cannot be explained by objectively justified factors unrelated to any discrimination on grounds of sex "(4).
For the calculation of the termination indemnity as well as for the legal obligation of re-employment, the judges of the High Court shall ensure that the applicable rules are not applied in the same way to all so that one of the both sexes is discriminated against.
To this end, they draw on the ingredients of the decision of the CJEU, so that the impossibility of characterizing moral harassment does not constitute an insurmountable obstacle to obtaining damages for the breach of the legal obligation.
(1) Cass., Soc., October 14, 2019, No. 18-15682
(3) L. 1225-55 of the Labor Code, https://www.legifrance.gouv.fr/affichCode.do;jsessionid=C2B1EBD7022C152B933FDECA4A306633.tplgfr30s_2?idSectionTA=LEGISCTA000006195596&cidTexte=LEGITEXT000006072050&dateTexte=20080501
(4) Art. 157, TFEU,
Frédéric CHHUM, Avocats à la Cour et membre du conseil de l’ordre des avocats de Paris
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