Denying paternity and birth leave to an employee […]

CA Toulouse 16-12-2022 n° 21/01896, Sté Trans Occitan c/ K

For the record, articles L.1132-1 and following of the French Labor Code provide, among other things, that no employee may be punished, dismissed or subjected to direct or indirect discrimination, in particular on the basis of family status.

While the December 16, 2022 ruling by the Toulouse Court of Appeals is a new example of the application of the general principle of prohibition of discrimination, it also provides essential elements relating to the conditions for granting the right to paternity leave and birth leave.

In this case, the employee was laid off as a precautionary measure, before finally being dismissed for serious misconduct. Challenging the conditions of performance and termination of his employment relationship, the employee brought an action before the Labour Court seeking an order against his former employer.

The dispute concerned, in particular, the employer’s refusal of the employee’s request for a second paternity leave and a second birth leave for the birth of his second child, which occurred three months after he had already been granted such leave for the birth of his first child.

It must be remembered that the The evidentiary regime in matters of discrimination is specific, since it requires the employee to present the judge with factual elements suggesting the existence of direct or indirect discrimination, and it is then up to the employer to prove that its decision is justified by objective elements unrelated to any discrimination.

Thus, the employee claimed, in particular by producing the minutes of the interview prior to dismissal, which mentioned that the employer had justified his refusal by the fact that polygamy did not exist in France, that he had been the victim of discrimination because of his family situation.

The judges considered, after having retained as established the refusal of paternity and childbirth leave due to the family situation of the employee and a leave imposed by the employer without notice, that these elements, taken together, suggested the existence of discrimination.

Then, after having dismissed as new arguments developed in appeal, the elements related to the absence of justification by the employee of the paternity of the second child and those related to the respect of the one month notice period to formulate his request for leave, They found that the employer justified its refusal to grant this leave “on the basis of a family situation of the person concerned which it considered to be unethical, and not because of any lack of justification“.

In view of these elements, the judges ruled that the refusal of paternity and childbirth leave by the employer, as well as the imposition of paid leave without notice, were not based on objective considerations but on a discriminatory ground.

If, without further analysis, this decision may appear singular with respect to the provisions relating to the prohibition of contracting a second marriage before the dissolution of the first and the civil and penal sanctions incurred in this hypothesis, it would still have been necessary, in order to put this decision into perspective with these texts, for the employee to have been “legally” in a situation of polygamy, which was not the case in this instance.

The conclusion reached by the Court of Appeal in this case is not so surprising, since the employer’s decision was based solely on the alleged immorality of the employee’s private and family life and this assessment, which was totally subjective, could only be qualified as discriminatory.

Also, the analysis made by the judges of the merits appears all the less surprising because :

• on the one hand, they suggested that this denial of leave could have been validated if the employer had justified it on a basis unrelated to the employee’s private life – including failure to provide proof of kinship with the child or failure to respect the notice period;
• on the other hand, they recalled that the provisions relating to birth and paternity leave, as they stood at the time of the dispute, did not require the father to live permanently with the child’s mother.

Furthermore, it can be noted that birth leave exists not only in the interest of the parents, and therefore of the father, but also and above all in the interest of the child.

In any event, it would be interesting for the Court of Cassation to be called upon to rule on this case involving rather atypical facts!