No, the Court of cassation has not just prohibited the termination of a pregnant employee’s probationary period

Court of cassation, Labor Div., 25 March 2026, No. 24-14.788

Recently, it has been claimed that, in a decision dated 25 March 2026, the Cour de cassation definitively prohibited employers from terminating the probationary period of a pregnant employee.

However, this is not what the Cour de cassation ruled.

First, it should be emphasised that the legislator did not wait for the Court of cassation to prohibit employers from ending the probationary period of a pregnant employee. While employers are not required to provide reasons for ending a probationary period, the French Labour Code prohibits taking pregnancy into account when doing so. This prohibition is reflected :

• Specifically, in the statutory provisions governing the protection of pregnancy and maternity, as Article L. 1225-1 of the French Labour Code expressly provides that “the employer must not take into consideration the pregnancy of a woman (…) in order to terminate her employment contract during a probationary period”;

• More generally, in the statutory provisions governing the principle of non-discrimination, as Article L. 1132-1 of the French Labour Code provides that “no employee may be sanctioned, dismissed or subjected to a discriminatory measure, whether direct or indirect (…) on the grounds of (…) family situation or pregnancy (…)”.

However, the two categories of statutory provisions referred to above each establish different regimes for providing evidence :

• The statutory provisions governing the protection of pregnancy and maternity include Article L. 1225-3, which specifies that, where a dispute arises concerning the application of Article L. 1225-1 of the French Labour Code (in particular, a dispute relating to the termination of a probationary period allegedly based on pregnancy), the employer must provide the court with all evidence capable of justifying its decision. Under this provision, the burden of proving the absence of discrimination based on pregnancy falls to the employer.

• By contrast, the statutory provisions governing the principle of non-discrimination include Article L. 1134-1, which provides that, where a dispute arises from a breach of Articles L. 1132-1 et seq. (including disputes relating to discrimination), the burden of proof is adjusted as follows :

The decision of the Court of cassation in fact concerns exclusively the application of these “burden of proof” systems :

• An employee brought a claim before the labour court, arguing that her employer had terminated her probationary period after she had informed the employer of her pregnancy;

• The court of appeal dismissed her claim, applying the evidentiary regime under Article L. 1134-1 of the French Labour Code and finding that the employee had failed to present any evidence suggesting the existence of direct or indirect discrimination;

• The Court of cassation quashed that judgment and remitted the case to a differently constituted court of appeal. Referring exclusively to Articles L. 1225-1 and L. 1225-3 of the French Labour Code, it held that the appellate court had “reversed the burden of proof” and that, once it had been established that the employer was aware of the employee’s pregnancy prior to the termination of the probationary period, it was for the employer to demonstrate that its decision was justified by factors unrelated to the pregnancy.

Through this ruling, the Court of Cassation clarified that, where it is proven that the employer was aware of the employee’s pregnancy before terminating the probationary period, the rules specific to pregnancy set out in Article L. 1225-3 of the French Labour Code governing the burden of proof should only apply. Consequently, the burden of proof falls exclusively on the employer.