Reference Decision: cc • No. 14-24.486 • 2016-03-23 • View the decision →
Imagine you are the owner of a building in Mont-de-Marsan, with several flats let to families. One of your tenants, employed by a cleaning company, has just had a child and returns to work after her maternity leave. However, her company loses the cleaning contract for your building, and the new company taking over the contract refuses to hire her because she was absent "for too long". A situation that seems commonplace, but which hides a profound injustice.
What to do in this case? Can you really refuse to hire an employee because she was on maternity leave? The question arises daily in businesses, condominiums, and offices in Tarnos where cleaning activities are numerous. For landlords who use these services, staff stability is crucial, but at what cost?
The Court of Cassation, in a decision of 23 March 2016, provides a clear and protective answer. It reminds us that an absence for maternity can never be used to disadvantage an employee, even if her leave ended several months ago. A firm position that changes the game for thousands of women, but also for their current and future employers.
The Facts: A Story That Happens Every Day
The story begins with Ms Sophie, employed for several years by a cleaning company that works in office buildings in Tarnos. In 2013, she becomes pregnant and takes her maternity leave, as provided by law. After a few months, she returns to work, everything seems normal.
But in 2014, her company loses the cleaning contract for an important building. According to a collective agreement (a convention signed between employers and trade unions), employees should normally be taken on by the new company that wins the contract, provided they have not been absent for more than four months before the end of the contract. However, Ms Sophie was absent for her maternity leave, and even though it ended several months ago, the new company refuses to take her on, considering that her absence exceeds the permitted limit.
Ms Sophie therefore finds herself without a job, just as she has resumed her activity. She files a claim with the industrial tribunal (the specialised court in employment law), arguing that her absence for maternity should not count in this calculation. The company, for its part, maintains that the rules of the collective agreement apply to everyone, without exception. The industrial tribunal rules in her favour, but the company appeals. The court of appeal reverses the decision, considering that since the maternity leave had ended, the absence could be taken into account.
Ms Sophie does not give up and files an appeal with the Court of Cassation, the highest judicial court in France. She argues that discriminating against an employee for an absence related to pregnancy, even in the past, is contrary to European law. A fight that goes beyond her personal case and touches on fundamental principles of equality.
The Court's Reasoning — Analysed
The judges of the Court of Cassation examined the case with particular attention to European texts. They relied on Article 2, paragraph 2, c), of Directive 2006/54/EC (a European text that imposes equality between men and women at work). This article clearly defines what constitutes direct discrimination: any less favourable treatment of a woman linked to pregnancy or maternity leave.
In short, the Court explains that as soon as a decision disadvantages an employee because she was pregnant or on maternity leave, there is discrimination. It does not matter that the leave ended a long time ago, it does not matter that she had other absences (such as illness) before or after. The essential point is that absence for maternity can never be a reason to refuse employment or an advantage.
In other words, the Court of Cassation interpreted the 1990 collective agreement (which set the conditions for taking on employees in case of a change of company) in light of European law. It considered that the clause excluding employees absent for more than four months could not apply to women on maternity leave, even if their leave ended before the loss of the contract. This confirms previous case law, but with an important clarification: the timing of the absence does not change its discriminatory nature.
In this case, the company's arguments were based on a strict reading of the collective agreement: "The rules are the same for everyone, and Ms Sophie does not meet the condition of four months' absence." But the Court responded that these rules cannot go against the higher principles of equality. The judges thus ruled in favour of Ms Sophie, emphasising that European law takes precedence over national agreements when it better protects fundamental rights.
What few people know is that this decision is part of a long tradition of protecting pregnant women at work. It reminds us that maternity is not a disability, but a right, and that employers must adapt, not the other way around.
What This Changes for You — Practically
If you are a landlord in Mont-de-Marsan and use cleaning companies for your buildings, this decision directly concerns you. Imagine that you change service providers for your 20-flat residential building, and the new company refuses to take on an employee who was on maternity leave last year. You could be held indirectly responsible if this discrimination is proven, as you are the client. undefined, I have encountered cases where landlords had to intervene to avoid costly disputes with affected employees.
For tenants, especially those working in sectors like cleaning, security, or childcare, this decision is an assurance. If your company loses a contract and you are on maternity leave (even if it has ended), you have the right to be taken on by the new company without your absence counting against you. Practically, this can represent savings of several months' salary, approximately €1,500 to €2,000 per month in these professions.
For real estate professionals, such as developers or condominium managers in Tarnos, this decision requires increased vigilance in choosing subcontractors. You must ensure that companies respect these rules, at the risk of seeing your projects delayed by social disputes. An example: if you are building a new housing estate and subcontract the cleaning of common areas, ensure that the contract provides for the taking on of employees without discrimination.
But what exactly does this change for employees? Before this decision, some companies could argue that since the maternity leave had ended, the "normal" absence could be counted. Now, it is clear: any absence related to maternity, even in the past, is protected. If you are in this situation, you must keep all evidence of your leave (certificates, pay slips) and contact a specialised lawyer within 12 months of the refusal, the typical time limit for action in the industrial tribunal.
Four Tips to Avoid This Type of Dispute
- Check subcontracting contract clauses: If you are a landlord or manager, require companies to include an explicit mention of non-discrimination related to maternity, in accordance with European Directive 2006/54/EC.
- Document all maternity leave absences: For employees, keep a copy of your maternity leave notification and exchanges with the employer. These documents will be crucial in case of dispute.
- Train your teams on the rights of pregnant women: HR managers or cleaning company managers in Mont-de-Marsan should organise training sessions to avoid costly mistakes (compensation can reach 6 to 12 months' salary).
- Consult a lawyer before refusing to hire: If you are an employer and hesitate to take on an employee due to absence, seek legal advice. A 30-minute consultation can avoid years of proceedings.
Deep Dive: Related Case Law and Developments
This 2016 decision is part of an already well-established line of case law (the body of court decisions on a subject). For example, in a 2014 judgment (No. 13-20.316), the Court of Cassation had already ruled that a dismissal linked to pregnancy was void, even if the employer invoked other reasons. The trend is clear: judges are increasingly protecting women against discrimination related to maternity, relying on European law.
Be careful, however: this protection has its limits. If an employee has absences for other reasons (such as illness unrelated to pregnancy), these can be taken into account, provided the reasons are not mixed. The 2016 decision specifies that absence for maternity is "off the table", but not other absences.
For the future, this case law should encourage French legislators to strengthen sanctions against discrimination, perhaps by increasing damages or simplifying procedures. In cities like Tarnos, where the economy often relies on small businesses, this could lead to better training of employers.
Key Points to Remember
- An absence for maternity leave can never be held against an employee, even if it ended months ago.
- European law takes precedence over collective agreements: clauses that disadvantage pregnant women are void.
- Evidence is essential: keep all documents related to your maternity leave.
- Act quickly: in case of discriminatory refusal to hire, you generally have 12 months to file a claim with the industrial tribunal.
- Employers must adapt their practices: check your contracts and train your teams to avoid costly disputes.
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