Employees who keep working during their leave may be compensated, but not paid: an explanation.
Working during maternity leave cannot give rise to a claim for back pay. This was confirmed by the French Court of Cassation (Cour de cassation) in a ruling of 2 October 2024. The decision raises important questions about employees’ rights and employers’ obligations with regard to maternity leave and sick leave.
Suspension of the employment contract: a legal obligation
When an employee is on maternity leave, her employment contract is suspended, meaning that she is not required to perform any work. Article L. 1225-29 of the French Labour Code expressly prohibits employing her during a period of eight weeks around childbirth, six of which must fall after the birth. Any breach of this rule is a criminal offence. Likewise, an employee on sick leave is not expected to work during that period, as the Court of Cassation held on 15 June 1999.
Damages rather than back pay
The Court of Cassation has made clear that, even if an employee works during her maternity leave or sick leave, she may only claim damages for the harm suffered, not back pay. The decision is based on contractual liability, since having an employee perform work while her contract is suspended renders the employer liable. The Court thus followed the opinion of the Advocate General, who considered that paying a salary in such circumstances would amount to regularising an unlawful situation.
Clarification on the salary catch-up
The Court of Cassation also took the opportunity to specify that the salary catch-up to which employees are entitled after maternity leave need only be paid once that leave has ended. This clarification is essential to avoid any misunderstanding between employers and employees regarding post-maternity pay increases.
The Court of Cassation’s decision underlines the importance of respecting the periods during which the employment contract is suspended for maternity leave or sick leave. It also points out that the remedies available to the employees concerned are limited to damages.