Parental leave must not have any impact on the calculation of the employee’s rights

ECJ, 8 May 2019, aff. C-486/18

The French Supreme Court, which was called upon to take a position on the methods for calculating the rights of an employee on parental leave, submitted several preliminary questions to the European Court of Justice (“ECJ”) regarding the compliance of French law with European law.

In fact, the severance pay and redeployment leave allowance are, according to French law, calculated in due proportion with the effective working time. They could therefore be reduced in case of parental leave.

The French Supreme Court therefore ask if French law was compliant with:

  • Clause 2(4) and (6) of the Framework Agreement on Parental Leave (attached to the directive 96/34/CE, June 3, 1996), which provides that the rights of employees on parental leave shall be maintained until the end of the leave;
  • Article 157 of the Treaty on the Functioning of the European Union (“TFEU”), according to which ” Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied” in so far as a considerably higher number of women than men choose to take parental leave on a part-time basis.

In a decision of May 8, 2019, the ECJ answered positively to these two questions, stating in particular that:

  • the guarantee of the rights acquired by the employee during the leave could not be subject to any exception, which thus prevents the period of leave from having any impact on the calculation of the employee’s rights;
  • Article 157 TFEU prohibits the application of provisions which create differences in treatment between male and female workers, which is the case with part-time parental leave since more women than men opt for such a leave, i.e. 96% of workers in France.