Maternity Leave and Variable Bonus: How to Calculate Salary?

You are an employee in a financial company in Digoin, and you are going on maternity leave. You usually receive a variable component linked to your turnover. But here's the thing: in the three months before your departure, you made no sales. The employer calculates your salary maintenance on these three months with zero variable. Result: you lose thousands of euros. Legitimate? No, said the Court of Cassation in a judgment of 5 June 2019 (No. 18-12.862).

This decision concerns the interpretation of Article 32 of the national collective agreement for financial companies of 22 November 1968. But beyond that, it raises a fundamental question: over what period should the salary maintained during maternity leave be calculated when the remuneration is partly variable? The answer is crucial for thousands of employees and employers.

In this article, I explain the facts, the judges' reasoning, and above all what it actually changes for you, whether you are an employee, employer or HR professional in Chalon-sur-Saône or elsewhere.

The facts: a story like so many everyday ones

Mrs X, a sales representative in a financial company in Paris, is pregnant. She takes maternity leave from 4 November 2006 to 1 April 2007, then a second from 5 November 2007 to 1 April 2008, and finally a third in 2008-2009. Her salary consists of a fixed part and a variable part, calculated on the turnover she generates.

During her leaves, the employer applies Article 32 of the collective agreement: full salary maintenance for 16 weeks, less daily benefits from Social Security and provident fund. But to calculate this salary, he takes the three months preceding each leave. However, during these three months, Mrs X had generated no turnover – perhaps because she was already on sick leave for pathological pregnancy, or because her activity is cyclical. Result: her variable part is zero, and her salary maintenance is very low.

Mrs X brings the matter before the employment tribunal, then the court of appeal. She argues that the calculation should be based on an annual average, which smooths out fluctuations. The employer resists: the agreement does not specify the reference period, he says, and the three months preceding the leave are the rule in labour law. The court of appeal agrees with him in principle on including the variable part, but rejects the three-month period: it adopts an average over the last twelve months. The employer appeals to the Court of Cassation.

The reasoning of the court — dissected

The Court of Cassation had to decide two questions: 1) should the variable part be included in the reference salary? 2) Over what period should it be calculated?

On the first point, the Court approves the court of appeal: Article 32 of the collective agreement speaks of "full salary", without distinguishing fixed and variable. Since the variable part is part of the usual remuneration, it must be included. This is logical: the purpose of salary maintenance is to protect the employee during her maternity leave, by ensuring her an income equivalent to what she would have earned if she had worked.

On the second point, the Court validates the use of an annual average. Why? Because the collective agreement does not set a reference period. And because the employee's activity, based on turnover, is inherently fluctuating. Taking the last three months, during which she had sold nothing, would have led to a flagrant inequality: she would have received a salary far lower than her usual remuneration. The judges consider that the annual assessment makes it possible to smooth out these differences and reflect the reality of her work over the year.

The Court therefore dismisses the employer's appeal. This decision is part of a protective line of case law for employees on maternity leave, reminding that collective agreements must be interpreted in favour of the beneficiary. It is not a reversal, but a useful clarification.

What this changes for you — concretely

If you are an employee and your remuneration includes a variable part (bonuses, commissions, profit-sharing), this decision is a weapon. Your employer cannot impose an unfavourable calculation period that would deprive you of this variable part. Example: in Chalon-sur-Saône, a sales representative in a service company receives €2,000 fixed salary and variable commissions. In 2023, she earned €10,000 in variable over the year, but only €500 in the three months before her leave. With the three-month rule, her salary maintenance would be €2,500 per month. With the annual average, it rises to €2,833. Over 16 weeks, the difference is more than €1,300.

For employers, be careful: if your collective agreement does not specify the reference period, you must choose a period that fairly reflects the usual remuneration. The three-month period can be retained if the activity is stable, but if it is fluctuating, you risk a lawsuit. Better to provide a clear rule in the contract or a company agreement.

For HR professionals in Digoin or elsewhere, this decision is a signal: review your practices for calculating salary maintenance for maternity, paternity or sick leave, especially if your employees have variable remuneration. An error can be costly in back pay and damages.

Four tips to avoid this type of dispute

• Check your collective agreement: Article 32 of the financial companies agreement is clear, but other agreements may have different rules. Read the provisions on salary maintenance and the reference period.
• For employers: set a reference period in the contract or an agreement: if your agreement is silent, define an objective rule, for example the average of the last 12 months, to avoid any litigation.
• For employees: keep your payslips and commission statements: in case of dispute, you will need to prove the fluctuating nature of your variable. A table of the last 12 months is your best ally.
• Consult a specialised lawyer before challenging: each case is unique. A decision of the Court of Cassation sets the law, but its application depends on the facts. Maître Cécile Zakine, lawyer in Chalon-sur-Saône, can help you assess your situation.

Further detail: related case law and developments

This decision is part of a protective line. Already in 2012 (Cass. soc., 11 July 2012, No. 11-10.899), the Court of Cassation had ruled that variable bonuses must be included in the reference salary for calculating redundancy pay. In 2016 (Cass. soc., 9 November 2016, No. 15-19.292), it extended this principle to holiday pay. The logic is consistent: variable remuneration is an integral part of salary.

However, on the reference period, the case law is more nuanced. Some earlier decisions accepted the three-month period if it was provided for by a collective agreement. Here, the agreement was silent, which allowed the judges to adopt a more favourable period. The trend is therefore towards the most protective interpretation for the employee, especially during maternity leave where vulnerability is recognised.

In the future, employers would be well advised to clarify their rules in company agreements, otherwise they risk the courts imposing an annual average.

Checklist before acting

FAQ:

1. My employer calculated my salary maintenance on the last 3 months, but I have a fluctuating variable part. Can I challenge this?
Yes, if you prove that your variable is irregular. You can request a calculation over 12 months, as in the commented decision. Gather your payslips and bring the matter before the employment tribunal.

2. What if my collective agreement provides for a 3-month period?
The agreement normally applies, but you can rely on this decision if it is silent on taking account of variables. If it is explicit, you will have to show that it is contrary to the principle of equal treatment.

3. What are the time limits to act?
You have 5 years from the payment of the contested salary to claim back pay (standard limitation period). But act quickly, as evidence fades.

4. Can I get damages in addition to back pay?
Yes, if you prove a separate loss, for example financial difficulties due to late payment. But this is not automatic.

5. My employer is in Digoin, do I have to take the case to the tribunal in Chalon-sur-Saône?
Yes, the competent employment tribunal is that of the place of work or the company's registered office. For an employer in Digoin, it is the tribunal in Chalon-sur-Saône.

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. Book an appointment →