Acceptance of a « Contrat de Sécurisation Professionnelle » by a pregnant employee: beware of the reasons for termination !

Cass. Soc., October 4, 2023, n°21-21.059 F-B

A pregnant employee, whose employment contract has not been suspended, signs up for the Contrat de Sécurisation Professionnelle (CSP) offered by her employer, and sees her employment contract terminated at the end of the 21-day reflection period she has to respond.

During the reflection period, the employer sent her a letter informing her of the economic reasons for the termination.

Subsequently, and considering that the termination of her employment contract, which took place during the period of relative protection provided by article L.1225-4 of the French Labour Code, was insufficiently motivated in that the employer did not specify which circumstances made it impossible to maintain the employment contract as required by the aforementioned article, the employee appealed the CPH.

The employer argued that the acceptance of a CSP by an employee entails the termination of the employment contract by mutual agreement, so that it is not required to justify “the existence of a serious fault committed by the employee, unrelated to the state of pregnancy, or her inability to maintain the employment contract for a reason unrelated to the pregnancy or childbirth”.

Confirming the position of the lower courts, the Cour de cassation rejected the employer’s argument, pointing out first of all that joining the CSP is not a “termination agreement”, but a dismissal for economic reasons.

Consequently, the Court specified that, on pain of nullity of the dismissal, the employer should have mentioned in his written notification not only the economic reason, but also the impossibility of maintaining the employee’s employment, for a reason unrelated to her pregnancy.

The Court of Cassation therefore applied the provisions of article L.1225-4 of the French Labor Code strictly, pointing out that the existence of an economic reason alone does not make it impossible for the employer to maintain the employment contract with the pregnant employee.