Conventional breastfeeding leave: the employer cannot oppose it

You work as an employee in an estate agency in Castelsarrasin, you have just had a child and you wish to take three months' breastfeeding leave, as provided for by your collective agreement. Your employer tells you that this leave does not exist, that it is in fact parental leave, and that he can refuse. What should you do? This situation, experienced by an employee of an estate agency in Tarn-et-Garonne, gave rise to a decision by the Court of Cassation in 1991. The issue is simple: can an employer oppose a conventional leave that he considers identical to statutory leave? The answer is no, and this decision protects employees.

The facts: a story that happens every day

Mrs X is employed as an estate agent in an agency in Montauban. She gives birth in March 1985 and takes statutory maternity leave. On 10 June 1985, she informs her employer that she wishes to take, from 12 August 1985, three months' breastfeeding leave provided for by article 22 b of the national collective agreement for staff of estate agents and business transfer agents, followed by twelve months' parental leave. The employer refuses, considering that the breastfeeding leave is merely part of the statutory parental leave and that he can therefore oppose it. Mrs X brings the matter before the employment tribunal to assert her right. The tribunal finds in her favour, but the employer appeals. The Court of Appeal upholds the judgment. The employer then appeals to the Court of Cassation. The Court of Cassation, by a judgment of 30 October 1991, dismisses the appeal and confirms the employee's right to conventional breastfeeding leave.

The court's reasoning — broken down

The question was whether the breastfeeding leave provided for by the collective agreement was of the same nature as the parental leave provided for by Article L. 122-28-1 of the Labour Code (now L. 1225-47). The Court of Cassation distinguished between the two. Conventional breastfeeding leave is a specific maternity leave, more favourable than statutory maternity leave. It allows the employee to take three months off to breastfeed her child, with a guarantee of reinstatement. In short, it is not parental leave, but maternity leave improved by the collective agreement. However, collective agreements can provide for provisions more favourable than the law. The employer cannot therefore oppose it. In other words, even if parental leave is a right for the employee, the employer may refuse it in certain cases (for example, if the absence harms the company). But for conventional breastfeeding leave, the employer does not have this right of refusal. Note, however, that this leave is not an absolute right; it is subject to the conditions of the collective agreement, particularly the duration and prior request. In this case, the employee had complied with these conditions. The Court therefore logically dismissed the employer's appeal.

What this means for you — concretely

If you are an employee of an estate agency covered by this collective agreement, you are entitled to three months' breastfeeding leave, separate from parental leave. Your employer cannot refuse it on the pretext that it is parental leave. In practice, you must make a written request, respecting a notice period (often one month). For example, in Montauban, if you give birth in January, you can request breastfeeding leave from April. During this leave, your contract is suspended, but you are reinstated at the end. If your employer refuses, you can bring a claim before the employment tribunal for damages. undefined, I have encountered cases where the employer tried to dissuade the employee by invoking organisational constraints. But the case law is clear: conventional law prevails. What few people know is that this leave can be combined with other leave, such as parental leave, provided that the maximum durations are respected. Note however: if you work in another sector, check your collective agreement, as similar provisions sometimes exist.

Four tips to avoid this type of dispute

• Check your collective agreement: Consult the articles relating to maternity and parental leave. Breastfeeding leave may appear under another name (conventional maternity leave).
• Make a written request: Send a recorded delivery letter with acknowledgement of receipt to your employer, specifying the dates and the conventional basis. Keep a copy.
• Respect the deadlines: The agreement often requires one month's notice before the start of the leave. Do not delay in informing your employer.
• If refused, do not give in: Bring a claim before the employment tribunal promptly (limitation period of 2 years for the performance of the contract). A lawyer can help you obtain compensation.

Further details: related case law and developments

The Court of Cassation has confirmed this position in other judgments, for example in 1993 (No. 90-44.123) concerning a collective agreement in the metallurgy sector. However, some earlier decisions may have created confusion by assimilating breastfeeding leave to parental leave. The 1991 judgment put an end to this uncertainty. Since then, the trend has been consistent: judges protect more favourable conventional provisions. For the future, employees can be reassured: even if the law evolves, collective agreements remain a source of additional rights. If you are affected, do not hesitate to rely on this judgment.

What you absolutely must remember

FAQ:

• What is the legal basis? Article 22 b of the national collective agreement for staff of estate agents and business transfer agents, as interpreted by the Court of Cassation.
• Can I take this leave if I work part-time? Yes, the leave is open to all employees, regardless of their working hours.
• What should I do if my employer refuses? Bring a claim before the employment tribunal within 2 years of the refusal. You can claim damages for the harm suffered.
• Is this leave paid? No, unless the collective agreement provides for compensation (which is rare). It is unpaid leave, but you may be entitled to benefits from the CAF (Family Allowance Fund).
• Can I combine this leave with parental leave? Yes, but the total duration must not exceed the legal limits (one year for parental leave).

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