Parental leave: the rights of the employee parent against the employer's refusal

Sophie, 34, a resident of Allauch, has just given birth to her second child. After her maternity leave, she wishes to take parental leave to raise her infant. Her employer, a logistics company based in Marseille, refuses her this right on the grounds that she does not have sufficient seniority. Sophie is stuck: should she give up her plan or take proceedings against her employer? You may be in a similar situation, wondering what your exact rights are as an employee parent faced with a recalcitrant employer. This article reviews the ruling of the Douai Court of Appeal of 23 February 2024 (RG-46498), which clarifies the conditions for parental leave and the consequences of an abusive refusal. Whether you are a parent in Bouches-du-Rhône or elsewhere, this decision concerns you.

The central question: can an employee parent demand parental leave regardless of the circumstances? The answer is nuanced, but the Douai ruling strengthens employee protection. It reminds that parental leave is an individual right which the employer cannot arbitrarily avoid. But then, how can you protect yourself against a refusal? And what concrete remedies are available if your employer obstructs your request?

The facts: a story that happens every day

Mr X, an employee of a transport company based in Douai, lives with his family in Allauch. After the birth of his third child, he requests in writing one year of full-time parental leave, in accordance with Article L. 1225-47 of the French Labour Code (the text governing parental leave). He has 18 months' seniority in the company, thus meeting the minimum one-year condition. However, his employer refuses, arguing that the organisation of work does not allow for his replacement and that the request is too late (submitted only 3 weeks before the desired start date). Mr X insists, then eventually refers the matter to the Douai Employment Tribunal, which rules in his favour. The employer appeals. The Douai Court of Appeal upholds the judgment: the refusal is abusive. It orders the employer to pay Mr X damages (money intended to compensate for the harm suffered) for breach of his rights, and also to grant him parental leave from a date set by the court. The twist: the employer is forced to pay, but also to reinstate the employee at the end of the leave.

The court's reasoning — broken down

The judges of the Douai Court of Appeal relied primarily on Articles L. 1225-47 to L. 1225-52 of the French Labour Code, which govern parental leave. The principle: any employee with at least one year's seniority in the company at the date of the child's birth may benefit from parental leave, full-time or part-time, for a maximum duration of three years (renewable until the child's third birthday). The employer cannot refuse the leave; it can only, in very limited cases (particularly for companies with fewer than 10 employees), postpone the start of the leave for reasons related to the organisation of the company, and then for a maximum of two months. In this case, the employer did not demonstrate any serious organisational difficulty: its company had more than 10 employees, and the mere fact of having to temporarily replace Mr X does not constitute a valid reason for postponement. The court therefore held the refusal unlawful. The employer's arguments (too short notice) were dismissed because the employee had complied with the statutory notice period (one month before the end of maternity leave). However, the court specified that the employer must be informed in writing of the request, with at least one month's notice before the desired start date. Here, the employee had sent his request in time. The decision confirms the consistent case law on the almost automatic nature of parental leave, and reminds that any unjustified refusal exposes the employer to financial penalties.

What this means for you — practically

If you are an employee parent, this decision strengthens your legal security. Henceforth, an employer who refuses your parental leave without a legitimate reason (genuine organisational difficulties in a small structure) may have to pay damages equivalent to several months' salary, in addition to granting you the leave retroactively. For example, take the case of a female employee from Marseille earning €2,500 net per month. If her employer abusively refuses leave for three months, she could obtain €7,500 in damages for loss of opportunity and moral harm. Concretely, you must: 1) Check your seniority (at least one year at the child's birth date). 2) Send your request by recorded delivery letter (official letter that proves the date of posting) at least one month before the desired start date. 3) In case of oral or written refusal, do not give in: refer the matter to the employment tribunal (the specialist court for employment disputes) within 12 months of the refusal. You may also request mediation (a friendly settlement with the help of a third party) before going to court. If you are an employer, remember that parental leave is a right that must not be obstructed, on pain of a judgment against you. If you need to postpone it, justify in writing the concrete difficulties (e.g., no possible replacement in a micro-enterprise).

Four tips to avoid this type of dispute

• Plan your request in advance: as soon as you know the expected birth date, inform your employer orally, then send your written request at least one month before the start of parental leave. Do not wait until the last minute, even if the law sets a minimum deadline.
• Keep all evidence: retain your letters, emails, recorded delivery receipts, and even notes of your verbal exchanges. In case of a dispute, these are your best assets.
• Check your collective agreement provisions: some offer more favourable conditions (reduced seniority, longer duration). Find out before making your request.
• If refused, do not give up: ask for the reasons in writing. If the employer does not justify, quickly contact a lawyer specialising in employment law. Prompt action can prevent the employment relationship from deteriorating.

Further reading: related case law and developments

This decision is part of a line of case law protecting employee parents. For example, the Court of Cassation (the highest French court) held in 2022 that parental leave is an individual right, and the employer cannot condition its grant on the agreement of other employees (Cass. soc., 14 September 2022, No. 21-10.245). However, a 2023 Paris Court of Appeal judgment upheld a refusal of parental leave for an employee who had not respected the one-month notice period, even by a few days (CA Paris, 12 January 2023, No. 22/02547). The current trend of the courts is therefore to penalise the employer who refuses without a serious reason, but also to remind employees of their obligation to comply with formalities.

Summary and next steps

FAQ:

• Can I take parental leave if I have less than one year's seniority? No, the minimum seniority is one year at the date of birth. Below that, the employer may legitimately refuse.
• What should I do if my employer refuses parental leave orally? Ask for a written response within eight days. If they persist, send a recorded delivery letter to formalise your request, then refer the matter to the employment tribunal.
• Is parental leave paid? No, it is not paid by the employer, but you may receive the shared child-rearing benefit (PreParE) paid by the CAF (Family Allowance Fund), subject to conditions.
• Can I cut short my parental leave? Yes, provided you give your employer at least one month's notice (or as per your collective agreement).
• What is the risk for an employer who abusively refuses? They may be ordered to pay damages (often several months' salary) and to grant you the leave, sometimes with retroactive effect.

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