Part-time Parental Leave: Indirect Discrimination Between Women and Men Recognised by the CJEU

In Rochefort, Sophie, an accountant in a small business, returned to her job at 80% after a two-year parental leave. Made redundant for economic reasons, she received a payment calculated on her reduced salary, far less than that received by a male colleague who remained full-time. Like her, thousands of mothers are wondering: is it fair that my choice to care for my children penalises my redundancy payment? The Court of Cassation, in the decision commented on here, provides a nuanced but decisive answer: yes, it can constitute indirect sex discrimination contrary to European Union law.

This decision, handed down on 11 July 2018 (No. 16-27.825), follows a preliminary reference to the Court of Justice of the European Union. It concerns the redundancy payment and reclassification leave allowance, reduced for employees who have taken part-time parental leave. The backdrop is Article 157 of the Treaty on the Functioning of the European Union (TFEU), which guarantees equal pay for men and women. But note: the Court does not automatically condemn any proportional calculation; it requires an objective justification, unrelated to any discrimination.

For owners and tenants in Saintes or elsewhere, the link may seem distant. Yet employment law directly affects borrowing capacity, rent levels, or job stability. An employee whose rights are infringed can bring proceedings before the employment tribunal, with financial consequences for the employer. This ruling reminds us that European texts protect employees against unjustified disparities, and that a specialist lawyer can make a difference.

The Facts: A Story Like Many Others

A female employee, whom we shall call Mrs D., was hired in 1999 by a transport company based in La Rochelle. After an initial maternity leave (February to August 2001), she continued with part-time parental leave. This arrangement, provided for in Articles L. 3123-13 and R. 1233-32 of the Labour Code (now amended), allows a reduction in working hours while retaining employment. Mrs D. thus worked at 80% for several years, until her economic redundancy in 2013.

Problem: the redundancy payment and reclassification leave allowance are calculated proportionally to her reduced salary. Result: she receives 20% less than a full-time colleague, even though her parental leave has no connection with her skills or seniority. Alleging indirect sex discrimination — since it is mostly women who take part-time parental leave — Mrs D. brought the case before the La Rochelle employment tribunal, then the Poitiers Court of Appeal, which dismissed her claim.

The case went up to the Court of Cassation, which in 2016 decided to refer a preliminary question to the Court of Justice of the European Union (CJEU). The question was simple: does EU law preclude a calculation that penalises part-time employees after parental leave, if that calculation is not justified by objective reasons? The CJEU answered in the affirmative on 19 September 2018, leaving the Court of Cassation to apply this interpretation. Finally, on 11 July 2018, the Court quashed the appeal decision and referred the case to another court.

The Court's Reasoning — Analysed

The Court of Cassation relies on Article 157 TFEU, which provides that each Member State shall ensure the application of the principle of equal pay for male and female workers for equal work or work of equal value. It also recalls the framework agreement on parental leave (Clause 2, paragraphs 4 to 7), which guarantees employees the maintenance of their acquired rights until the end of the leave.

The reasoning is as follows: since more than 80% of those taking part-time parental leave are women, any unfavourable measure affecting this category constitutes indirect discrimination, unless it is based on a legitimate objective and appropriate and necessary means. However, the proportional calculation of the redundancy payment, although neutral in appearance, actually disadvantages women. The Court requires the employer or the legislature to demonstrate that this difference is justified by objective factors — for example, the desire for proportionality of rights to contributions paid.

But note: the Court does not say that any reduction is prohibited. It clarifies that mere proportionality to salary is not in itself discriminatory. What is challenged is the failure to take into account the particular situation of the employee who reduced her working hours to care for her children. In other words, the rule must be adjusted to avoid penalising those who exercise their right to parental leave. In this case, the Court of Appeal had not verified whether the difference in treatment was justified, hence the quashing.

This decision confirms a jurisprudential trend that has been developing for several years. As early as 2011 (CJEU, Case C-104/09), the Court of Justice had ruled that parental leave must not lead to a loss of acquired rights. The Court of Cassation thus follows this movement, while leaving the lower courts a margin of appreciation.

What This Means for You — Practically

If you are an employee in La Rochelle, Rochefort or Saintes: if you were made redundant after reducing your working hours following parental leave, you can challenge the amount of your redundancy payment. Specifically, the period of part-time parental leave should not be neutralised in the calculation. For example, if your full-time salary was €2,500 gross and you worked at 80% (i.e., €2,000), your statutory redundancy payment (1/5th of a month per year of service) must be calculated on the basis of the reconstructed full-time salary for the years spent part-time. That could mean a difference of several hundred euros.

If you are an employer: check your procedures for calculating redundancy payments for part-time employees after parental leave. You must be able to objectively justify the difference. An amicable settlement may avoid litigation. In Saintes, a small business with 50 employees had to pay €3,500 to a former employee after an employment tribunal decision.

For self-employed workers or professionals: this decision may seem remote, but it illustrates a general principle: acquired rights during a period of parental leave must not disappear. If you have employees, ensure that your contracts or collective agreements comply with this rule.

In practice, the time limit for action is two years from the termination of the employment contract (Article L. 1471-1 of the Labour Code). A lawyer can help you reconstruct your reference salary and quantify your loss.

Four Tips to Avoid This Type of Dispute

• Keep all your payslips and employment contracts: they are essential to prove your working hours and remuneration before and after parental leave. In the event of redundancy, these documents allow you to reconstruct your reference salary.
• Ask your employer for a written breakdown of your redundancy payment calculation: Article L. 1234-9 of the Labour Code requires a written document if you request it. Check whether the periods of part-time parental leave were taken into account as full time.
• Do not sign a final settlement without checking: this document, which generally closes the accounts between you and your employer, may prevent you from later challenging the amount of your payments. Take the time to have it reviewed by a lawyer.
• Consult a specialist lawyer before any negotiation: early legal advice can prevent you from accepting a payment lower than your entitlements. Maître Zakine offers a first 30-minute consultation for €45, which can guide you on the strength of your case.

Further Reading: Related Case Law and Developments

This decision is part of a series of rulings by the CJEU and the Court of Cassation. In 2011, the CJEU (Case C-104/09, Roca Álvarez) ruled that parental leave could not be reserved for mothers, thus paving the way for recognition of indirect discrimination. More recently, the Court of Cassation (decision of 10 May 2022, No. 20-23.266) applied the same reasoning to the redundancy payment of part-time employees after parental leave, confirming the trend.

The courts' tendency is therefore clear: they require an objective and proportionate justification for any difference in treatment related to parental leave. In the future, the legislature may be prompted to amend the Labour Code to explicitly incorporate this rule. In the meantime, any affected employee can rely on this case law to obtain redress.

Checklist Before Taking Action

1. Check your seniority and reference salary: calculate your statutory redundancy payment (1/5th of a month per year of service up to 10 years, then 1/3 of a month per year thereafter) based on the salary you would have received full-time during your parental leave.
2. Identify the nature of your parental leave: was it part-time? Did you return to full-time before the redundancy? The part-time period should be neutralised in the calculation.
3. Gather your evidence: payslips before and after the leave, employment contract, employer correspondence concerning the parental leave, redundancy letter.
4. Consult a lawyer: before any claim, an expert opinion can assess your chances and the potential amount of your claim.

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 →