Can the employer refuse a late application for parental education leave?

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An employee who wishes to benefit from parental education leave must inform their employer of the date of departure on parental leave and the duration of the leave. If this period starts immediately after maternity or adoption leave, the employee must inform the employer at least one month before the end of this leave. Otherwise, he must inform the employer at least 2 months before the start of the leave (Article L 1225-50 of the Labor Code).

However, the labor code does not provide for any consequences on the right to leave if the employee does not comply with the information deadlines. It follows that failure to comply with the time limit for providing information does not render the employee’s request inadmissible. The employer may not refuse leave or ask the employer to reapply by postponing the desired leave date in order to comply with the prescribed time limits.

The Court of Cassation recently ruled to that effect. By considering the claim inadmissible, the employer runs the risk of being ordered to pay damages.

Previously, the judges had had the opportunity to rule on the formality of the application. Article R 1225-13 of the Labor Code provides that the request is to be made by registered letter with a request for notice of receipt or by hand against signature. Failure to comply with this obligation does not call into question the right of the employee. That obligation is merely a means of proving that the employer has been informed.