Work during parental leave

Can we work on parental leave?

Employees with at least 1 year of seniority in the company can take parental leave, and this full-time or part-time. If you have chosen the part-time parental leave formula, this implies that you will have to work at least 16 hours per week in your company and up to the limit of 80% of full time. Apart from this option, be aware that it is not allowed to exercise any other activity of an independent type (self-employed or other) or of any other nature during parental leavewith the exception of the profession of maternal assistant.At the end of your parental leave, you will return to your previous job or a similar job with more or less equivalent remuneration.

Parental leave after a CDD: is it possible?

My delivery is scheduled after the end of my fixed-term contract.

Can I claim parental leave? 

Claire – By Internet

Response by Maître Thibault Gonggryp, lawyer at the Marseille Bar

If the CDD ended before the expected date of delivery, the question of maternity or parental leave will not arise with your former employer. insofar as the termination of a fixed-term contract in principle terminates the contractual relations, even if the fixed-term contract would be suspended. Regarding the duration, the parental leave ends no later than the child’s third birthday (L.1225-48). It is initially planned for a period of one year, renewable twice. This faculty being of right for the employees, it is always possible to negotiate with your employer a different duration and consequently provide for a return to the company on a mutually agreed date. Regarding this leave, the Labor Code gives the employee the possibility of opting:

– or for parental education leave, during which the employment contract is suspended;

– either for a reduction in weekly working hours, which must then be between sixteen hours and the applicable duration in the establishment.

If I take part-time parental leave, will I keep my job?

I would like to take part-time parental leave. I have noted that when I return to full-time, I must find the same position or an equivalent position. But what about during half-time? My management plans to circumvent my position in a rather unsatisfactory manner by keeping only the part of my current position for which I am overqualified. Is there a text on the consistency of part-time compared to the previous full position? Rémi – By Internet

Response by Maître Thibault Gonggryp, lawyer at the Marseille Bar

It should first be noted that, in this case, the reduction in weekly working time must be between sixteen hours and the duration applicable in the establishment. In this case, the minimum threshold of sixteen hours was retained so that those concerned continue to benefit from benefits in kind and in cash from the sickness-maternity insurance scheme (two hundred working hours per quarter minimum). The question of the professional qualification occupied by the employee during this reduction in working time is more complex and is not the subject ofno specific regulations in the labor code. That being said, there is a contractual over-classification when the employer recognizes in the employee a qualification higher than that resulting from the functions he actually performs. Overqualification by the will of the employer is accepted by case law. The employer has the option of recognizing the employee the benefit of a higher qualification than that to which his job would be entitled, provided that this qualification provides the employee with benefits at least equivalent to those attached to the functions actually performed (Cass. soc. 7 November 1984 n ° 82-41.241 (n ° 3052 S), Sté Infracom c / Gence; Cass. soc. 17 February 1988 n ° 85-42.793 (n ° 705 D), Fraisse c / Baldo). It does not matter if the employee does not meet the conditions provided for in the collective agreement for the exercise of this job. The employee is therefore entitled to claim the remuneration corresponding to this qualification by the sole application of his individual employment contract.. Consequently, in the light of these provisions and insofar as you are already performing the tasks entrusted to you within the framework of the reduction of your working time, it does not seem possible to modify this assignment, except to make a request to your employer in order to know its position on the matter.

Parental leave: return to work in good conditions

I am currently in full-time parental leave since a year. When it next renews in October, I would have liked to go back to work 3 days a week. However, my employer and I cannot agree on the working hours. Can you inform me about the possible remedies? If there is none, should I resign or can I negotiate a dismissal? Melany – By Internet

Response by Maître Thibault Gonggryp, lawyer at the Marseille Bar

In principle, the organization of part-time work during parental leave is determined by mutual agreement of the parties, it being understood that the labor code sets a minimum weekly working time of 16 hours. The fixing of the work schedule, in the absence of agreement between the parties, will, on the other hand, fall within the employer’s power of direction (Cass. Soc. 4 June 2002 n ° 00-42.262 (n ° 1859 FS-P), Bertelli c / SARL Soledec: RJS 8-9 / 02 n ° 993, Bull. Civ. V n ° 189). The employee’s refusal to resume work at the time fixed by the employer, in the absence of agreement between the parties, may be sanctioned by disciplinary dismissal.. This refusal is however not constituting a serious fault, since this employer’s proposal is not compatible with imperative family obligations (Cass. soc. April 1, 2003 n ° 00-41.873 (n ° 1045 FS-P), Palmouries c / EURL Cabanie D’Aussonne : RJS 6/03 n ° 768, Bull. Civ. V n ° 125).

Two limits to the employer’s power of direction : 1. Part-time work, as part of parental education leave, aims to allow the employee to provide in good conditions for the education of his child. In addition, Article 8 of the European Convention on Human Rights establishes the principle of the right to lead a normal family life. As a result, the employer cannot force an employee to come and work five days a week for a short period of time, which creates significant childcare and transport constraints, as well as heavy costs for the remuneration received, without justifying that the restrictions placed on the employee’s right to lead a normal family life are justified by the nature of the task to be accomplished or proportionate to the goal sought (CA Chambéry 13 February 2003 n ° 01-355, ch. Soc., Multiples c / Martins).

2. If the employer is free to arrange the reduction in working time within the framework of parental leave, he must do so within the interest of the company, without malignant will and in good faith, in accordance with article 1134 of the Civil Code. The employer does not perform the employment contract in good faith by reducing the working hours to all working days per week, whereas the employee wished not to work on Wednesdays, without opposing the person concerned to a valid reason based on the interests of the company (CA Versailles March 9, 2004 n ° 03-2636, 6th ch., Sté Franfinance c / Pierre: RJS 2/05 n ° 167).

Regarding resignation, everything depends on the situation and the precise causes of the disagreement, each party having to argue legitimate reasons in order to be able to validly justify its position, possibly before an industrial tribunal if the dispute is brought to that point.