The Court of cassation is in does not narrate

If it is a possibility that fear employers from dismissing an employee, that is to receive, within fifteen days that follow, a medical certificate of pregnancy which will force them to set aside the dismissal. Nevertheless, it is an inescapable obligation and it is better, as soon as possible, do against bad fortune good heart, as evidenced by the mishap at a Breton company. This company had laid off a "agréeuse tide" a November 19. The Contracting Party does not waste time and, four days after the employer receives, by registered letter with acknowledgement of receipt, a medical certificate stating that this employee signs of evolution whose early pregnancy is fixed to 20 October, and the first prenatal exam.

The employer is dead. After a month of silence, the employee decides to enter the labor to pronounce the nullity of his dismissal and therefore obtaining payment of various sums. Company behind, receives the 5 January employee verbally acknowledged that the dismissal is null, and finally, on January 11, by sending him finally a letter acknowledging expressly the nullity of dismissal letter ends with a development is made to the complainant to return to his position at soon!

Point of no return

The employee decides not to do. For her, in the binding to appeal to the labor, the employer crossed a tipping point and expressed his willingness to ignore the law. The employer, on the other hand, camped on its position, waits until 21 February and considering having sufficient evidence of patience, dismissed his collaborator for serious misconduct. Imagine the employer is rubbing his hands thinking he "played well at the time." Initially, he had a termination zero, upon arrival, he was an immediate dismissal without compensation. Moreover, it will no longer to worry about the temporary replacement during maternity leave, any benefit!

But as it was to be expected, the employee counterattack is successful. Same result in the Court of appeal. In support of its appeal in cassation, the employer will multiply the arguments, without fear of contradiction, for his good right.

First find the employer would be required to reinstate the employee only if the request! When an employee comes to receive his letter of dismissal is quick, by return mail, send a certificate of pregnancy, why does if it is to be reinstated Contrast what it comes to support, the employer tries to absolve his late reaction within that annulment of the dismissal occurs "of law". And to add that no text imposes on the employer in writing notify the nullity of the dismissal. And then, ultimately, was this reaction so late January 5, he had informed the employee of the cancellation, why was it the Act of 11 January only intake

The substance precedence over form

Continuing its momentum, the company attempts to postpone the fault of the employee: the certificate sent would not be as required by regulation, i.e. article R1225-1 (former article R122-9) of the Labour Code. He had mentioned the date of confinement.

The Court of cassation is in does not narrate. The bottom differential form: what is the law, is protecting the employee pregnant against the dismissal, except in cases of serious misconduct or failure to maintain the position for reasons of pregnancy. Therefore, the indications for article R1225-1 of the Labour Code are not substantial.

The Court said then, what is common sense, it is for the employer to give a response to the employee, and this more quickly. It is not "to accept" annulment, it is to act, so that the employee be tranquillisée on the fact that his letter of dismissal is as cleared. Otherwise, the employee can rightly consider that the employer had decided to in addition to the Act and preferred financial relief to reintegration (Cass. Soc., 9 July 2008, no. 07 - 41 927).