When, on the day of the request for judicial termination (résiliation judiciaire), the employee did not inform the employer of her pregnancy, the judicial termination of the employer's wrongs must be classified as a dismissal without real and serious cause.
This is what the Court of Cassation has just affirmed in a judgment of November 28th, 2018 (n°15-29330).
1) Facts and procedure.
Ms. Y., wife Z., was hired on November 29th, 2012 by Ambulances Championnet (the company) as a part-time nurse.
On July 29th, 2013, she filed a complaint before the Labour Tribunal to terminate her contract of employment.
By letter dated December 12nd, 2013, she sent the company a declaration of pregnancy.
She was dismissed for serious misconduct on December 18th, 2013.
In a judgment of November 5th, 2015, the Court of Appeal of Paris pronounced the judicial termination of the contract of employment to the faults of the employer, and said that this termination produces the effects of a dismissal null and void.
The Court also ordered the company to pay salary recalls and related holidays with pay for the period from January to October 2013, wages due until 24th August 2014, the date on which the protection, compensatory notice and related vacation leave and indemnity for dismissal.
The employer went to the court of cassation to challenge the decision of the Paris Court of appeal.
2) Solution of the Court of Cassation of November 28th, 2018.
In a decision of November 28th, 2018, the Court of Cassation breaks the judgment of the Court of Appeal of Paris.
At first, the Court of Cassation validates the judicial termination.
In this regard, it notes that the Paris Court of Appeal had found that as of January 2013, the company had not provided the employee with work for the agreed duration so that she would not had not satisfied its obligation to pay the contractually agreed salary, the Court of Appeal, which was not required to carry out further research, legally justified its decision.
Secondly, she considers that the effects of the judicial termination are not a null and void dismissal (licenciement nul) but a dismissal without any real and serious cause (licenciement sans cause réelle et sérieuse).
The Court of Cassation states that "when on the day of the request for judicial termination, the employee did not inform the employer of its pregnancy, the judicial termination to the wrongs of the employer must be analyzed in a dismissal without real and serious cause ".
The Court of Cassation also notes that "to say that the judicial termination produces the effects of a null and void dismissal, the judgment holds that the employee had informed the employer of its pregnancy".
The Court breaks the judgment of the Paris Court of Appeal by stating that "it was clear from the findings [of the Court of Appeal] that the employee had informed the employer of her pregnancy only after the referral to the Labour Court for purposes of judicial termination of his employment contract, the court of appeal violated the aforementioned texts. "
This is the first time that the Court of Cassation rules, to our knowledge, in such a sense.
3) Scope of the decision: the dismissal is null and void only if the employer was informed of the state of pregnancy at the date of referral to the Labour Tribunal (conseil de prud’hommes)
The Court of Cassation poses an alternative:
. if the employer does not know the state of pregnancy at the date of referral to the Labour Court for lack of knowledge, the judicial termination must be a dismissal without real and serious cause;
. if, on the other hand, the employer is informed of the state of pregnancy on the date of referral to the Labour Court, the judicial termination subsequently pronounced may produce the effects of a null dismissal.
In addition to a termination indemnity of no less than six months' salary, the employee is entitled to the payment of wages covering the period of protection related to maternity.
Pregnant employees (salaries enceintes) are therefore advised to inform their employer of their pregnancy status as soon as possible by registered letter with acknowledgment of receipt.
C. cass. November 28th 2018 15-29330
Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)
Membre du Conseil de l’ordre des avocats de Paris
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