Dismissal during sick leave: this article reviews the applicable law, the compensation available if the procedure is not followed, and the steps to take to assert your rights, with insights from an employment lawyer.
This article covers non-work-related sick leave. Specific rules apply in the event of a workplace accident or occupational disease.
Can you be dismissed while on sick leave?
Contrary to popular belief, sick leave does not provide absolute immunity. In certain cases, an employer may terminate an employment contract while the employee is on leave. What is strictly prohibited is dismissing the employee because of the illness itself.
The principle of non-discrimination based on health
The French Labor Code prohibits any adverse measure taken against an employee because of their state of health. A dismissal motivated, directly or indirectly, by illness or sick leave is considered discriminatory. It is therefore null and void, which gives the employee enhanced rights.
Dismissal during leave versus dismissal because of leave
The whole nuance lies in this distinction. Being dismissed while on sick leave is not unlawful in itself: what matters is the real reason for the termination. If that reason is unrelated to health, the dismissal may be valid. If it is in fact based on the employee's absence or medical condition, it becomes unfair and open to challenge.
When is a dismissal during sick leave valid?
The law recognizes several legitimate grounds for dismissing an employee, including during sick leave.
Serious or gross misconduct
If the employee commits a characterized act of misconduct unrelated to their leave, the employer may initiate disciplinary proceedings. Serious misconduct discovered before or during the leave may justify dismissal, provided it rests on a genuine grievance.
Disruption of the business and permanent replacement
Prolonged or repeated absences may cause lasting disruption to the business. In that case, the employer may dismiss the employee, provided it can demonstrate the disruption and proceeds with the employee's permanent replacement by hiring on a permanent contract. The ground here is not the illness itself, but its concrete consequences on the proper functioning of the business.
Medical unfitness declared by the occupational physician
If the occupational physician declares the employee medically unfit to return to their position and redeployment proves impossible, a dismissal for medical unfitness may be pronounced. This procedure follows precise rules, and any failure by the employer may render it irregular.
Economic grounds unrelated to the illness
The elimination of a position for genuine economic reasons may concern an employee on sick leave, provided the ground is entirely unrelated to their state of health and follows a proper economic dismissal procedure.
When does a dismissal linked to sick leave become unfair?
This is where the employee's defense comes into play. A dismissal becomes unfair as soon as its true basis is linked to health.
A dismissal actually based on the illness
An employer cannot use a pretext to disguise a dismissal motivated by sick leave. If the dismissal letter directly refers to absences due to illness, or if the evidence reveals a hidden motive linked to health, the termination is unfair. The employee may then challenge it and claim compensation.
Dismissal without real and serious cause, null and void, or for serious misconduct: what is the difference?
These three concepts are often confused, yet their consequences differ greatly.
A dismissal without real and serious cause is a dismissal whose ground is not sufficiently justified. It gives rise to compensation capped by the applicable statutory scale.
A dismissal that is null and void is more serious: it sanctions, in particular, discriminatory dismissals, including those based on health. Nullity may allow the employee to seek reinstatement or enhanced compensation not capped by the scale.
A dismissal for serious misconduct rests on wrongful conduct that makes it impossible to keep the employee in the business. If it is recharacterized for lack of evidence, it may be held to be without real and serious cause, or even null and void if the illness is at issue.
Identifying the right characterization is decisive for the defense strategy and the amounts claimed. This is one of the points on which a lawyer's analysis makes all the difference.
Can you be dismissed for abusing sick leave?
The question also arises from the employer's side, when it suspects an employee of abusing sick leave. Here again, the existence of sick leave, even if considered suspicious, is not in itself sufficient to justify a dismissal.
The employer must prove wrongful conduct or a separate and serious ground. For example, an employee who carries on an activity incompatible with their employment contract during their leave, or who fails to meet their obligations, may face a sanction. But that sanction must rest on established facts, not on mere suspicion. Otherwise, the dismissal is liable to be annulled.
What compensation is available in the event of unfair dismissal?
Where the dismissal is held to be unjustified, the employee may claim several sums, the amount of which varies according to the characterization adopted.
Compensation for dismissal without real and serious cause
In the event of dismissal without real and serious cause, the labor court awards compensation capped by a scale based on the employee's length of service and the size of the company (French Labor Code, Art. L. 1235-3). Subject to conditions, this compensation is in addition to the other sums due on termination.
Enhanced compensation where the dismissal is null and void
If the dismissal is held to be null and void, for example because it is discriminatory on grounds of health, the compensation is not subject to the scale. The employee may obtain compensation of at least six months' salary, and may also seek reinstatement in the company, although proving that a dismissal is null and void is complex in practice.
Other sums due
Beyond the main compensation, the employee may claim payment in lieu of notice, statutory or contractual severance pay, and payment in lieu of accrued paid leave. Together, these items can represent significant amounts, hence the importance of a precise calculation.
How to challenge a dismissal linked to sick leave
Challenging a dismissal requires following a procedure and strict time limits.
Attempting an amicable resolution
With support, the employee can approach their former employer to try to reach an amicable outcome, before or alongside litigation, in order to obtain compensation through a settlement agreement.
Filing a claim with the labor court
The labor court (conseil de prud'hommes) has jurisdiction over disputes relating to dismissal. The proceedings make it possible to seek the recharacterization of the termination, the payment of compensation, and, where appropriate, reinstatement.
The time limit for taking action
The employee generally has twelve months from notification of the dismissal to bring a claim before the labor court. After that period, the claim is in principle time-barred. It is therefore essential not to delay having your case reviewed.
The evidence to gather
The success of a challenge depends largely on the evidence gathered: the dismissal letter, written exchanges, witness statements, the history of sick leave, and any evidence revealing a hidden motive. A lawyer helps build a solid case and identify the decisive arguments.
Before taking any action, having a professional check whether the dismissal was lawful makes it possible to assess your chances and the amount you can expect.
The value of being assisted by a lawyer
A dismissal during or because of sick leave raises significant financial and personal stakes. The line between a legitimate termination and an unfair dismissal linked to sick leave comes down to details that only a careful review of the file can reveal. Every situation is different, and the characterization adopted directly determines the amount of compensation and the chances of success.
Being assisted by a lawyer makes it possible to identify an optimized approach, in a pre-litigation or litigation context, on a solid legal footing.
