Paternity Leave: Employer Can Neither Oppose the Departure Nor Postpone It

In Aix-en-Provence, at a real estate agency in the city centre, Mr. Torres learns that he is going to be a father. He informs his employer one month in advance: he wishes to take his paternity leave from 1 to 21 September. His boss replies that this is impossible: the period is too busy, he must postpone. Mr. Torres insists, leaves anyway, and receives a warning. He takes the case to the employment tribunal (conseil de prud'hommes). Who is right? The question that every employee becoming a father asks himself is simple: can my employer really block my leave? This decision of the French Supreme Court (Cour de cassation) of 31 May 2012 (n° 11-10.282) provides a clear and final answer. Labour law protects paternity leave as an autonomous right, distinct from paid leave. And the judges have ruled: the employer can neither oppose the employee's departure nor require its postponement, provided that the employee has respected the one-month notice period. In other words, the father has the final say. But be careful: there are nuances. Let us delve into the details of this case and see concretely what it changes for you, whether you are an employee in La Ciotat or an employer in Marseille.

The facts: a story that happens every day

Mr. X, an employee of a transport company based in La Ciotat, becomes a father on 25 July 2007. In accordance with Article L. 1225-35 of the French Labour Code, he informs his employer by registered letter dated 3 August 2007 of his wish to take paternity leave. He specifies the dates: from 1 to 21 September 2007. The employer, citing a workload peak, refuses his departure on those dates and asks him to postpone. Mr. X refuses and takes his leave as planned. On his return, the employer imposes a disciplinary sanction. The employee then brings the matter before the employment tribunal (conseil de prud'hommes) to challenge this sanction and claim damages. The tribunal rules in his favour, but the Aix-en-Provence Court of Appeal (cour d'appel) reverses the judgment, holding that the employer could legitimately oppose the leave for operational reasons. Mr. X appeals to the French Supreme Court. The Cour de cassation quashes the appeal judgment and definitively rules in his favour. By opposing the leave, the employer had violated the employee's right.

The reasoning of the court — dissected

The Cour de cassation relies on Article L. 1225-35, paragraph 3, of the French Labour Code. This provision states that the employee who wishes to benefit from paternity leave “notifies his employer at least one month before the date on which he intends to take it, specifying the date on which he intends to end it”. For the judges, this simple notification is sufficient: the employer has no power of opposition or postponement. Paternity leave is an autonomous right, distinct from paid leave, which cannot be subject to the needs of the business. In other words, the employee is the sole master of his dates, within the legal limit (11 consecutive days, which may be split into two periods). The Court specifies that neither the needs of the business nor the workload can hinder this right. This is a confirmation of previous case law: paternity leave benefits from reinforced protection. The employer who opposes it or sanctions the employee commits a fault engaging his liability (Article 1240 of the French Civil Code, which requires reparation for damage caused by fault). In this case, the Court of Appeal had erred in considering that the employer could require a postponement. The Cour de cassation restores the law.

What this changes for you — concretely

For employees: you have the right to take your paternity leave on the dates you choose, provided you respect the one-month notice period. Your employer cannot oppose it. If he does, you can bring the matter before the employment tribunal (conseil de prud'hommes) to obtain damages and the cancellation of any sanction. For example, if you work in a construction company in La Ciotat and your boss threatens to dismiss you if you leave, you are protected. For employers: you must arrange for a replacement without being able to impose a postponement. If you believe that the employee's departure disrupts the business, you can ask for an adjustment, but the employee can refuse. Caution: if you sanction an employee who has respected the procedure, you risk damages (often several months' salary) and the cancellation of the sanction. undefined, I have come across cases where the employer, thinking he was doing the right thing, required a postponement due to an urgent project. Result: ordered to pay €3,000 in damages to the employee. What few people know is that paternity leave can be split into two periods, but the first must be taken immediately after the birth. The employee must inform the employer one month before each period.

Four tips to avoid this type of dispute

• For the employee: strictly respect the one-month notice period. Send a registered letter with acknowledgement of receipt to your employer, specifying the start and end dates of your leave. Keep a copy. If the employer refuses, leave anyway: you are within your rights.
• For the employer: never formally oppose. You can discuss with the employee to find a compromise, but if you refuse the departure, you commit a fault. Instead, prepare a replacement plan as soon as you are informed.
• For both: put all communications in writing. In case of a dispute, written evidence is essential. A simple email may suffice, but registered mail remains the best proof.
• In case of a sanction: challenge it immediately. If you are an employee and you receive a warning, bring the matter before the employment tribunal (conseil de prud'hommes) within 12 months. If you are an employer and you have already sanctioned, consult a lawyer to assess the risk.

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Further details: related case law and developments

This decision is part of a protective line for paternity leave. Already, in a judgment of 9 November 2010 (n° 09-42.650), the Cour de cassation had held that the employer's refusal to grant paternity leave constituted gross misconduct justifying the judicial termination of the employment contract. Here, the Court confirms and specifies: even if the employee leaves without waiting for agreement, he is protected. On the other hand, a 2016 decision (n° 14-29.650) recalled that the employee must inform the employer one month before each period in case of splitting. The trend is clear: the courts are very strict towards employers who hinder this right. In the future, we can expect the Cour de cassation to extend this protection to parental leave (congé parental d'éducation), which follows similar rules.

Frequently asked questions

Can I take my paternity leave in several parts? Yes, the leave can be split into two periods, but the first must begin immediately after the birth. Each period must be preceded by a one-month notice.

What should I do if my employer threatens to dismiss me if I leave? You can leave anyway: the threat is illegal. Keep all evidence (letters, witnesses) and bring the matter before the employment tribunal (conseil de prud'hommes) after your return. You can obtain damages for abusive resistance.

Can my employer require me to postpone my leave due to a workload peak? No, case law is clear: workload cannot hinder the right to paternity leave. The employer must arrange for a replacement.

What are the time limits for challenging a sanction related to paternity leave? You have 12 months from the sanction to bring the matter before the employment tribunal (conseil de prud'hommes). After this period, your action will be inadmissible.

Is paternity leave paid? Yes, it is compensated by the French social security system (IJSS) subject to conditions. The employer does not have to pay the salary, unless a collective agreement provides for salary maintenance.

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