Can we fire a sick mother's assistant?

A mother’s assistant is on sick leave following a car accident, although she has been employed for just over 3 months. The couple who employed her fired her a few weeks later. She brought proceedings to have the breach of her contract of employment declared void and to obtain damages. Is she within her rights?

Service-Public.fr replies:

According to the Labor Code, no employee may be dismissed on account of his state of health. But the national collective agreement of maternity assistants of the individual employer of 1 july 2004 (in article 18) states that the parents have a right of withdrawal of the child, which constitutes breach of contract of employment’.

However, the reason for this withdrawal must not be discriminatory and therefore unlawful, the former employee argued.

The Court of Cassation observed that the absence of the nanny, of unknown duration, resulted in “family disorganization” for the two working parents. This absence “forced them to take days off to babysit, creating the risk that they would lose their jobs,” the appeals court noted.

Under these conditions, the parents were “unable to maintain” the employment contract with the maternal assistant.

For the Court of Cassation, the reason for the child’s removal was therefore ‘lawful’. The employment contract of a sick mother’s assistant may be terminated if her absence causes “family disorganization” for the parents who employ her.