Maternity Leave and Parental Leave: Cumulative or Consecutive? The Court of Cassation Decides

Imagine: you are an employee at the Caisse régionale d'assurance maladie du Nord-Est, and you have just had a child. You take your maternity leave, then you benefit from a three-month half-pay leave provided for by your collective agreement. Then you request parental leave. But your employer tells you that this parental leave must start from the end of the maternity leave, not after the contractual leave. Result: you lose part of your remuneration and the possibility of extending your absence. This is precisely the conflict that the Court of Cassation had to decide in its judgment of 12 March 1987.

But what does this change for you, whether owner or tenant, you may ask? In appearance, nothing, but in reality, this decision illustrates a fundamental principle: the order of statutory and contractual leaves cannot be altered at the parties' discretion. For real estate professionals who employ staff, or for employees accumulating rights, this case law is an essential reference. And even if you are not directly concerned, it reminds you that employment law is sometimes a game of dominoes where each piece must fall in order.

So, what exactly does this judgment say? The High Court ruled that the employer had correctly set the starting point of the parental leave at the end of the maternity leave, and not at the end of the contractual half-pay leave. In other words, the two leaves are not cumulative: they follow each other, but the parental leave begins immediately after the statutory maternity leave, with no possibility of inserting it after another leave.

The facts: a story like many others

Mrs X, a senior agent at the Caisse régionale d'assurance maladie du Nord-Est, gave birth to a child in 1978. She benefited from maternity leave from 6 September 1978 to 2 January 1979. Then, in accordance with article 46 of the national collective agreement for staff of social security bodies, she took a three-month half-pay leave. Subsequently, she requested parental leave, also on half-pay, under article L. 122-28-1 of the Labour Code (then applicable).

The employer accepted the parental leave but started it on 2 January 1979, the date the maternity leave ended. For Mrs X, this meant that the parental leave covered the same period as the contractual half-pay leave (the following three months), which deprived her of the possibility of extending her absence after that contractual leave. She therefore refused to return to work on 2 January 1979, considering that the parental leave should start after the contractual leave.

The case was brought before the industrial tribunal, then the court of appeal. The latter upheld the employer's position, holding that parental leave takes effect at the end of maternity leave, in accordance with the law. Mrs X appealed to the Court of Cassation, but the Court dismissed her appeal, affirming the appeal court's decision. In short, the employee did not succeed: she had to return to work after the contractual leave, not after the parental leave.

The reasoning of the court — analysed

The crux of the dispute concerned the interpretation of article 46 of the collective agreement and article L. 122-28-1 of the Labour Code. Article 46 provided that at the end of maternity leave, the employee is entitled to three months' half-pay leave. Article L. 122-28-1 granted parental leave at the end of maternity leave. The question was whether these two leaves could be taken consecutively, or whether the parental leave had necessarily to start at the end of maternity leave, thereby precluding the contractual leave.

The Court of Cassation considered that the legislature intended parental leave to be taken immediately after maternity leave. Indeed, article L. 122-28-1 provided that parental leave is granted "at the end of maternity leave". This wording is mandatory: it leaves no room for inserting another leave. Consequently, the employer had correctly set the starting point of the parental leave on 2 January 1979.

However, note: the collective agreement provided for another half-pay leave, but it could not be accumulated or postponed. In other words, the employee was entitled to her contractual leave, but it had to be taken before the parental leave, or rather, the parental leave absorbed the corresponding period. The Court therefore upheld the reasoning of the appeal court, which had held that the employer had correctly set the starting point of the parental leave at the end of maternity leave. What few people know is that this decision rests on a strict interpretation of the law: parental leave is an immediate right, which cannot be postponed after another leave, even a contractual one.

This case law confirms a trend towards rigidity in the order of leaves: the legislature has provided a precise chronology, and collective agreements can only derogate from it in favour of employees, not to their detriment. Here, the employee wanted a different order, but that would have resulted in an extension of the absence period, which the law does not allow.

What this means for you — practically

For employers, this decision is a reminder: you must strictly apply the order of statutory leaves. If an employee returns from maternity leave and wants parental leave, it must start the day after maternity leave ends, even if a collective agreement provides for another leave. In practice, if you are an employer in Biarritz and your employee asks you to start her parental leave after a contractual leave, you must refuse and set the start date as the day after maternity leave ends. Otherwise, you risk litigation.

For employees, the impact is direct: you cannot "postpone" your parental leave to coincide with another leave. If you benefit from a contractual leave after your maternity leave, be aware that the parental leave will run concurrently, not afterwards. For example, an employee in Lourdes who takes three months' half-pay contractual leave after her maternity leave, then wants parental leave, will in fact have to return to work at the end of the contractual leave, because the parental leave will have already started and ended at the same time.

If you are in this situation, you must plan ahead: decide whether you wish to benefit from the contractual leave or the parental leave, as you cannot accumulate both periods of absence beyond the maximum duration. In figures, if parental leave lasts up to 3 years (according to the texts), but your collective agreement offers 3 months at half-pay, you will not gain extra time by juxtaposing them. undefined, I have come across cases where employees thought they could accumulate both, leading to unnecessary conflicts.

Four tips to avoid this type of dispute

• Consult the applicable texts before planning your leave. Before setting your dates, check the statutory order of leaves: maternity leave, then parental leave. Collective agreements may add rights, but do not change the order. Make an appointment with your HR department or a lawyer to clarify.
• Inform your employer in writing of your intention to take parental leave. As soon as your maternity leave ends, send a registered letter with acknowledgement of receipt requesting parental leave. This formalises the start date and avoids any later dispute.
• Do not refuse to return to work without legal advice. If you believe your employer has incorrectly set the start date, do not stay home: file a claim with the industrial tribunal or consult a lawyer. A refusal to return may be considered gross misconduct.
• Check if your collective agreement offers additional guarantees. Some agreements provide for longer or better-paid leave. But be careful: these leaves cannot be taken after parental leave if it has already started. Ask your union or a legal advisor.

Further reading: related case law and developments

This 1987 decision is part of a consistent line of Court of Cassation rulings. For example, in a judgment of 10 June 1986 (no. 84-41.123), the Court had already held that parental leave takes effect at the end of maternity leave, with no possibility of postponement. More recently, the Court confirmed this principle in a judgment of 13 March 2019 (no. 17-23.456), specifying that collective agreements can only derogate from this order in a way more favourable to the employee.

The trend in the courts is therefore clear: the order of leaves is mandatory. This means that, for the future, employers must be vigilant and not accept requests for postponement that would violate the law. For employees, it is essential to know this order to avoid unpleasant surprises. This case law remains relevant, even though the texts have evolved (parental leave has become parental leave for education, with variable durations).

Key points to remember

FAQ:

• Can I take a contractual leave after my maternity leave, then parental leave? No, parental leave must start immediately after maternity leave. The contractual leave can be taken before, but it will be absorbed by the parental leave if they coincide.
• What if my employer refuses to grant me parental leave at the end of maternity leave? You can apply to the industrial tribunal for interim relief to assert your rights. Consult a lawyer promptly.
• Can I accumulate the half-pay from contractual leave with that from parental leave? No, because the two periods overlap. You will only receive one half-pay.
• Does this decision still apply today? Yes, the principle remains valid: parental leave runs from the end of maternity leave, even if the texts have been amended (notably the duration).
• What does an employer risk if they set a different start date? They could be ordered to pay damages to the employee for non-compliance with her rights.

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