11 February 2020

Did you know that?
An employer should always check whether the proposed dismissal is discriminatory

Mrs X is experiencing a particularly difficult pregnancy. In the course of her work, she commits a particularly serious professional error. Her employer decides to dismiss her. On the day of the hand-delivered letter of invitation to the preliminary dismissal interview, Mrs X officially announces her pregnancy.
Her employer, determined to terminate the employee's employment contract, decided to pursue the dismissal procedure.

A dismissal on personal grounds is invalid if it is based on a discriminatory ground.

The employer can dismiss for serious misconduct an employee even when the state of pregnancy is medically established, as long as the fault, which makes it impossible to maintain the contract, has its origin in a reason unrelated to the pregnancy.

However, the employer retains this flexibility, but only outside the periods of suspension of the employment contract due to the pregnancy.

Article 1132-1 of the French Code du provides that no one may be dismissed on the grounds of origin, sex, morals, sexual orientation, gender identity, age, marital status or pregnancy, genetic characteristics, particular vulnerability resulting from the economic situation, apparent or known to the perpetrator, membership or non-membership, real or supposed, of an ethnic group, nation or so-called race, political opinions, trade union or mutualist activities, holding a local elected office, religious beliefs, physical appearance, surname, place of residence or bank address, or by reason of health, loss of autonomy or disability, or ability to express oneself in a language other than French.

Violation of the protective status of a related to a work stoppage because of a pathological condition linked to exposure to distilbene, the dismissal is null and void.

Even though the employer had already sent the employee a letter of invitation to a preliminary dismissal interview, he could not dismiss her once he had been informed of her pregnancy.

Thus, insofar as the employment contract had not been definitively terminated as a result of the letter of notification of the dismissal for misconduct The employer should have stopped the dismissal procedure in view of the suspension of the employment contract due to sick leave in connection with the employee's pregnancy.
Indeed, even if the employer had the option of dismissing his employee due to her misconduct not linked to his pregnancy, he should have waited until the end of the suspension of his employment contract.

This is what the Social Chamber of the Court of Cassation ruled in a judgment of 15 January 2020 (appeal no. 18-24736).

Ms X may therefore request reinstatement in her job or, failing that, in an equivalent job.

What you need to know

The employer cannot object to the reinstatement, unless reinstatement is impossible.
If the employee is reinstated in the company, he is entitled to payment of an indemnity corresponding to the total sum of the wages he did not receive during the period between the termination of the contract and his reinstatement.
If the employee refuses reinstatement (or it is impossible), he/she will be entitled to the following compensation
- Termination benefits (severance pay, compensation in lieu of notice, compensation for loss of employment) paid holidays),
- Compensation to be paid by the employer corresponding to 6 months' wages.

Other cases of discrimination leading to invalidity of the dismissal

- In cases where the professional shortcomings are due to the employee's health, the dismissal may be considered discriminatory.
- When the employee is dismissed in violation of a fundamental freedom such as freedom of expression, freedom of association, freedom of religion or the employee's right to withdraw from work in case of imminent danger to his or her health,
- when the dismissal is linked to acts of moral or sexual harassment
- where the dismissal is a result of a legal action in the field of gender equality
- when the employee is dismissed for exercising his or her constitutionally recognised right to strike,
- where the dismissal is based on the employee's sexual orientation.

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