Extended Parental Leave Without Formalities: Unauthorised Absence According to the Court of Cassation

You are an employer in Bègles and your employee, after an initial parental leave, simply stopped coming without a new written request. Or you are an employee in Bordeaux and think that extending parental leave is done tacitly. Serious mistake. The Court of Cassation, in a judgment of 3 May 2016, recalls a simple but often overlooked rule: in the absence of justification of a request for extension, the absence becomes unjustified. And the consequences can be severe: dismissal, loss of benefits, even damages. Analysis.

The facts: a story like many others

Mrs V. is a part-time multi-purpose employee in a company in Bordeaux. On 10 July 2008, she sent her employer a request for parental leave (a period of authorised absence to raise a child, which can last up to three years). The employer acknowledged receipt. The initial leave ended in July 2009. Without a new written request, Mrs V. continued not to report to work. The employer, after several reminders, noted the absence and initiated a dismissal procedure for unjustified absence. Mrs V. challenged this: she claimed to have extended her leave verbally. Did the Bordeaux employment tribunal rule in her favour? No, the Bordeaux Court of Appeal considered her absence unjustified. Appeal to the Court of Cassation. The Court of Cassation dismissed the appeal: the formalities of Articles L. 1225-51 and R. 1225-13 of the Labour Code (written request one month before the end) are not a condition of the right, but in the absence of proof of the request, the absence is unjustified. A harsh return to reality for the employee.

The reasoning of the court — explained

The Court of Cassation confirmed the reasoning of the Court of Appeal: the right to parental leave exists, but its extension must be requested in writing, with one month's notice. Article L. 1225-51 of the Labour Code (which provides for this formality) aims to protect the employer, who must organise a replacement. If the employee does not prove that she sent her request (by registered letter or hand delivery against receipt), the absence is unjustified. The Court specifies: the formalities are not a condition of the right to the benefit of the extension, but their absence deprives the employee of the possibility of justifying his absence. In other words, the right exists, but if you do not formalise it, you cannot rely on it. The judges dismissed the employee's argument that she had informed her employer orally: without a written document, no proof. This is a classic application of the principle of evidentiary caution, but with severe consequences. The Court of Cassation did not innovate: it simply applied the rule of positive law, confirming consistent case law. No reversal, but a necessary reminder.

What this changes for you — practically

For employers: if an employee does not return after parental leave and has not provided a written request for extension, you can legitimately initiate proceedings for unjustified absence. Example in Bordeaux: a service company loses a contract because it cannot replace an absent employee without notice. Result: €15,000 in damages, potentially claimed from the employee. For employees: you must absolutely formalise each extension in writing, with acknowledgement of receipt. A simple email may suffice, but a registered letter is better. If you do not, you risk dismissal for gross misconduct, without compensation or unemployment benefits. For landlord owners: if your tenant is an employee and is dismissed for this reason, their financial situation may deteriorate. Anticipate rent arrears. In short, whether you are an employer, employee or landlord, this decision concerns you.

Four tips to avoid this type of dispute

• Send a registered letter with acknowledgement of receipt one month before the end of the leave, clearly stating your wish to extend. Keep a copy and the receipt.
• Prefer a written document, even if the employer accepts an oral agreement. Ask him to confirm in writing. Failing that, note the date and content of the exchange in a notebook.
• Respect the one-month deadline. Even a single day's delay may be considered an unjustified absence. In an emergency, request a written derogation agreement.
• If the employer refuses to sign a letter, use a bailiff or hand delivery with signature. Proof is your shield.

Further details: related case law and developments

This decision is part of a consistent line: the Court of Cassation requires compliance with formalities for family leave (Cass. soc., 12 March 2014, no. 12-24.887, same solution for parental presence leave). However, a more recent judgment (Cass. soc., 10 February 2021, no. 19-19.685) tempered this: if the employer implicitly accepted the extension by not reacting to the absence, the employee may be protected. But caution, this tolerance only applies if the employer was aware of the situation and did not object. The trend therefore remains strict: it is always better to have a written document. Courts prioritise legal certainty, to the detriment of oral arrangements.

In practice: what to do

If you are an employee and wish to extend your parental leave: send a registered letter one month before the end of the leave, stating the reason and duration. Keep the acknowledgement of receipt. If you are an employer and an employee does not return: send a formal written notice requesting justification of the absence. After a reasonable period (15 days), initiate a dismissal procedure for unjustified absence. If you are a landlord owner: inquire about the professional situation of your tenant. A dismissal may justify a request for a guarantee of unpaid rent (GLI).

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Make an appointment →