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Case Law in France - Court of Cassation Social Chamber CPAM de la Mayenne v. Feranain et autres The Court of Cassation confirmed the decision of the Court of Appeal. A provision granting allowances for creches only to mothers is null and void. The allowances must also be granted to fathers who fulfil the required conditions. Such a bonus constitutes an element of remuneration to be attributed regardless of the sex of the person concerned. Sté Européenne de Supermarchés Migros v. Mme Bebon According to this decision, the dismissal "for economic reasons" of a female employee returning from maternity leave and having refused a transfer to another position, must be declared ungrounded, as it had not been established that her previous position was abolished during the reorganisation of the enterprise, and when the impossibility to maintain the labour contract of the employee had not been proven. Mme Schmitt v. Laline The Court stated that the wage of a pregnant employee, whose dismissal was declared void, could not be reduced because of the allowance that she might have been granted by the social security or the unemployment agencies. Fromont v. Société AGA The Court considered that even a very unpleasant behaviour towards female personnel (or a specific colleague) may not be regarded as a sufficient cause of dismissal. In casu, the dismissed employee had behaved very coarsely towards a female employee (notably asking her to stay against the sunlight in order to catch a glimpse of her underwear, etc.). According to the Court, these facts happened in a context of "over-familiarities", and the employer tolerated this behaviour, which decreased its seriousness. The Court found that there was no serious fault by the employee and thus it declared the dismissal as having been decided without real and serious reason. CNAVTS v. Duchemin In this case, the collective agreement stipulated that, in order to be rated for promotion, an employee had to be present six months in a year. According to the Court, the fact that an employee was not rated because of her maternity leave did not constitute a prohibited discrimination based on sex. Mme Ollivier v. Société EROM France The Labour Court had observed that the dismissal had been notified during the maternity leave of the employee. It had also restated that the termination of a labour contract by the employer, even if justified by a serious fault unrelated to pregnancy, could not take affect or be notified during the suspension of the labour contract resulting from the maternity leave. Therefore, the Court of Cassation found that the Labour Court violated article L. 122-27 of the Labour Code when it rejected the claim of the employee for damages, when it decided that the dismissal produced effect only at the return from maternity leave. SARL Sotranord v. Mme Leleu According to the Court, the delivery or the sending by the pregnant employee of a medical certificate testifying her condition and the foreseen date of confinement does not constitute a substantial requirement in order for her to be legally protected. It is sufficient that the employer has been informed of her pregnancy. Mme Couturier v. SA Sté Financière et Foncière The Court of Cassation confirmed the following conclusions of the Court of Appeal. The contract of the employee concerned had been modified in one of its essential elements because of the abolition of the employee’s previous position. This had happened during the complete reorganisation of the enterprise, accompanied by dismissals, transfers and abolition of posts. The reorganisation had had to take place since the enterprise had stopped some of its activities. The request of the employee for reintegration in her previous position had been de facto impossible. The employer had demonstrated, in accordance with article L. 122-25-2 of the Labour Code, that it was impossible to maintain the labour contract for reasons unrelated to the pregnancy of the employee. Hodebourg v. Sté Laboratoires Fandre According to article L. 122-25-2 of the Labour Code, the employer must not terminate the labour contract of an employee, pregnant or on maternity leave, except for a reason unrelated to the pregnancy which makes it impossible to maintain the contract. Economic problems of the enterprise may constitute such a reason, authorising dismissal when the employee refuses the modification of her position. In casu, the employer had transferred the employee in accordance with the clause of mobility included in her contract. The employee refused the transfer, which provoked her dismissal. When included in the contract, and as a matter of principle, such a transfer does not constitute a substantial modification of the labour contract. Thus, it cannot be refused by the employee. However, this principle is applicable to a pregnant employee only if the dismissal resulting from the refusal of the modification is justified by a real and serious reason unrelated to the pregnancy. In the present decision, the Court found that it was the case: the employer had transferred the employee in the context of a new distribution of sale sectors decided because of the economic hardship of the enterprise. CNAM v. Aurran et autres The Court declared that a collective agreement providing for supplementary leave for mothers only, must also benefit employees who are fathers. SA Renault v. Chevalier et autres On the basis of article 119 of the EC Treaty and article L. 140-2 of the French Labour Code, this decision deals with particular advantages granted only to women, notably allocated at the occasion of a birth or an adoption. The collective agreement of the enterprise provided for the granting to mothers only of a bonus for childbirth or adoption and of a monthly childcare allowance for every child of less than 3 years of age. Male employees brought a claim before the Labour Court, which condemned the employer. The Court of Cassation rejected the appeal of the employer. The reasoning of the Court was the following: the granted allowances constituted an element of remuneration, aimed at compensating the expenses generated by the presence of a child; men faced the same expenses. The allowances were not measures aimed at protecting pregnancy or maternity, or at promoting equal opportunities between men and women by providing a remedy to de facto inequalities. Like the principal remuneration, fringe benefits and remuneration must be established on identical criteria for men and women. Société Delzongle v. Ponsole In this case, the problem was the fact that two secretaries doing a similar work were not equally remunerated. The explanation of the employer was the difference in the length of service of the two employees. However, this was not a valid justification since there already existed a seniority bonus not included in basic wages. The Court affirmed that equality of remuneration between men and women was an application of a more general rule: "equal pay for equal work". The employer must guarantee equality of remuneration between all employees of both sexes as far as the said employees are in identical situations. This decision limits, to a certain extent, the power of the employer. The employer keeps freedom to fix the salaries, but must respect the principle of equality. Mme Dundas v. Banque Saint-Dominique The Court affirmed that it was only possible to terminate the labour contract of a pregnant employee during her trial period, if this decision was not motivated by her condition, in violation of article L. 122-25-2 of the Labour Code. According to this article, it is prohibited to take into consideration the woman’s pregnancy to terminate her contract during the trial period. When the employee demonstrates that the termination has taken place because of her pregnancy, she is entitled to the damages provided for in article L. 122-30, alinéa 1, of the Labour Code; but, she is not entitled to the damages provided for in article L. 122-30, alinéa 2, which sanctions the violations of articles L. 122-25-2 which is inapplicable to trial periods. SARL - Usai Champignons v. Mme Douarre et Mme Daudel In this case, the Court of Cassation adopted the reasoning of the European Court of Justice concerning indirect discrimination and evidence. The defendant systematically gave higher wages to men than to women, whereas they were all in the same occupational categories. The justification of the employer was that men were using their strength (they were carrying boxes of mushrooms), while women were "only sorting mushrooms". The Court of Cassation considered that physical strength was not a criterion justifying a difference in remuneration. Furthermore, the Court underlined that it was the employer who had to prove the absence or the justification of an inequality, while it was the employee who had to denounce discriminatory wages. Caisse nationale d’assurance vieillesse des travailleurs salariés (CNAVTS)
v. Mme Thibault Based on article L. 123-1 of the Labour Code, the Court of Cassation found that a collective agreement that deprives a female employee on maternity leave of the right to be rated, because of her absence, which consequently impedes her promotion, is to be considered as direct discrimination. In its decision, the Court adopted the interpretation of the European Court of Justice in a judgement on 30 April 1998 in the case Caisse nationale d’assurance vieillesse des travailleurs salariés (CNAVTS) v. Evelyne Thibault (C-136/95). Hitherto, and in similar cases, the Court of Cassation had treated absence from work for reasons of maternity as sick leave and has discounted it in grading employees. Société Aubin v. Patrick Chatet The Court noted that the plaintiff accomplished the same work with the same coefficient and the same length of service as the other employees of his workshop. However, his remuneration was lower than the one of his colleagues, without any explanation of the employer. Thus, the Court considered that the plaintiff was entitled to claim damages for inequality of treatment. Mmes Klein et Renaud v. Cie Air France In this case, employees of an airline company had been declared unfit to fly due to their pregnancy. They requested a position on the ground compatible with their condition, in accordance with the personnel regulation. The Court considered that they were entitled to keep the same remuneration, regardless of the fact that the transfer was not realised because of the lack of available positions. M. Hanus et autres v. CPAM de Sarreguemines In this case, the Court recalled that article L. 123-3 of the Labour Code expressly authorised temporary measures in favour of women aiming at establishing equal opportunities for men and women. Criminal Chamber Laurens Case In this case, the Court underlined that the rules defining Sundays as the resting day had been adopted in the interest of workers, women and men. It constitutes a social benefit. Therefore, its application is not (directly or indirectly) discriminative against men or women.
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