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FRANCE - Discrimination against pregnant workers

August 7th 2014

Description

An awareness raising campaign mainly consisting of a leaflet explaining the rights and the duties of the pregnant workers and their employers, mainly within the private sector, also attracting claims and support of the Defender of Rights in case of litigation.

Duty bearers targeted, and their specific obligations (if any)

The targeted duty bearers are the employers and the HR managers, mainly in the private sector.

In terms of obligations, the relevant European legal framework is composed of the 92/85 and 2006/54 EU Directives.

The Law no 2006-340 of 23 March, 2006, on Equal Opportunities expressly mentions the ground of discrimination based on pregnancy (article 13). It has been introduced in article 225-1 of the Penal Code and in article L1132-1 of the Labour Code.

  • Articles 225-1 and 225-2 of the Penal Code punish discrimination on the basis of pregnancy committed against a person, by three years’ imprisonment and a fine of EUR 45,000. The discrimination may consist of the refusal to hire, the sanction or the dismissal of a person (3°) or subjecting an offer of employment, an application for a course or a training period to a condition based on pregnancy (5°).
  • Article L. 1132-1 of the Labour Code prohibits discrimination within the field of private employment when hiring or dismissing an employee, or for any other measure adopted during the course of an employment contract. According to this provision, no one may be denied access to a recruitment process or training period, no employee may be punished, dismissed, or discriminated against, either directly or indirectly, as far as his/her remuneration, classification, promotion is concerned in particular, on pregnancy.
  • The pregnant worker is also protected even if she is under a probation period (Court of Cassation 16 février 2005).
  • According to Articles L 1225-4 and L 1225-5 of the Labour Code, Dismissal is prohibited during pregnancy, where this has been medically certified, during maternity leave (whether or not the worker uses the right to take the leave), as well as during four weeks after the end of maternity. Dismissal is nonetheless permitted in case of a serious fault of the worker unrelated to pregnancy, or when the employer is unable to maintain the contract of employment for reasons unconnected with pregnancy, confinement or adoption. However, the dismissal or notice of dismissal may not take place during the periods of maternity and adoption leave. Violating this rule will result in any termination being invalid.
  • Not only the notification of a decision to dismiss on the grounds of pregnancy and/or of the birth of a child during the legal period of protection is prohibited, but also the taking of preparatory steps for such a decision before the end of that period (CJUE 11 October 2007 Paquay, Case C-460/06; Cour de Cassation 15 September 2010 no. 08-43.299)
  • Article 2-3° of Law no 2008-496 completing transposition of the European directives provides that as a matter of principle, “Any direct or indirect discrimination is prohibited due to pregnancy or maternity including maternity leave (…)”.

Main objective of the project

At first, this campaign was launched by HALDE in 2010. 1,5 million copies of the leaflet were distributed in public places including family benefits offices, law and justice centres, family planning clinics and maternity wards. It was considered as necessary as 400 individual claims were lodged with the HALDE in 5 years time.

At the end of 2012, this document was updated. 200,000 copies were disseminated to the Family Allowances Fund (Caisse d’allocations familiales), the Child and Maternal Protection (Protection maternelle et infantile), child-care centers, gynecologists, women associations, employers associations, the National Employment Agency, etc.

In 2011, 388 claims relating to discrimination on the ground of pregnancy representing 5% of the total claims on discrimination were lodged with the French Defender of Rights.

The HALDE and the Defender of Rights made observations before the Courts and tribunals on about 60 cases. The percentage of success is very high.

Tools

  • Awareness Raising
  • Enforcement and litigation if need be

The leaflet explains, in very accessible way, the rights and the duties of the pregnant workers and their employers. It also gives the contact details of the Defender of Rights.

Key achievements

Following these measures under the ex-HALDE (now Defender of Rights), the proportion of complaints on the grounds of gender and pregnancy doubled. The women are more aware of their rights and claim them.

The HR managers found this tool very accessible; it is used as a notification of the law and the duties of the employers.