OD Flash | Performance of work during suspension of employment contract for maternity leave does not give entitlement to back pay

French Supreme Court, Social Division, October 2, 2024, 23-11.582, Published in the bulletin

According to article 1231-1 of the French Civil Code, concerning compensation for damages resulting from non-performance of a contract, the party obligated under the contract is liable to pay damages either for non-performance of the obligation, or for delay in performance. Relying on this article, the Social Division of the French Supreme Court, in a ruling dated October 2, 2024, rejected an employee’s claim for back pay for having to work during her maternity leave.

In this case, an employee was placed on sick leave on several occasions, followed by maternity leave. She brought an action before the French Labor Court, claiming that she had been forced to work during her sick leave and maternity leave, and had been deprived of a pay rise granted to all employees during her maternity leave.

The Court of Appeal acknowledged that the employee had been required to perform professional duties remotely but rejected her claims for back pay and compensation for undeclared work. The judges ruled that, since the employee had received the equivalent of her salary under the salary continuation scheme during the periods of suspension of the employment contract, she was not entitled to double payment.

The employee appealed to the French Supreme Court, on the grounds that the equivalent of the salary paid for maternity was not compensation for work performed.

The French Supreme Court rejected the employee’s argument, providing its own reasoning in place of the Court of Appeal’s.

Based on article 1231-1 of the French Civil Code, the Court ruled that the performance of work on behalf of the employer during periods when the employment contract is suspended due to sick leave, accident or maternity leave, gives rise to liability on the part of the employer, and must be settled by the award of damages to compensate for the loss suffered.

Conversely, the employee could not claim back pay for hours worked during this period, when her contract was suspended.

In this case, the employee should have sought damages rather than back pay, it being specified that in this case, the mere fact that the employer failed to meet its obligation to suspend all work during maternity leave or sick leave entitles the employee to damages (Cass. soc., Sept. 4, 2024, no. 22-16.129, no. 23-15.944).