Member Article

An employee was fired after several sick leave periods, the last one of more than seven months. Her dismissal was based on the disturbance of the running of the prospecting and customer retention department that had resulted from her frequent and prolonged absences.

She sued her employer before the labor court, seeking to have her dismissal declared unfair.

The Court of Appeals rejected her claim. It held that the dismissal was justified as the employee had been absent for more than seven months at the time of her dismissal and had been absent several times before that, also for extended periods of time. At the time of the dismissal, the employer had no clear visibility on the employee’s availability because of these frequent absences. As a result, the department of prospecting and client retention in which she worked had to use different temporary replacements and had been largely disturbed. The disturbance had stopped once the employee was permanently replaced, following her dismissal. The proven disturbance thus constituted a valid basis for her dismissal.

The employee appealed the Court of Appeals’ decision. On May 26, 2017³, the Supreme Court overruled the Court of Appeals.

The French labor code provides that it is possible to dismiss an employee absent on sick leave if the basis for the dismissal is not related to the employee’s health itself but to the impact it has on the running of the company. If the absences objectively impair the running of the company, creating a need for the employer to replace the sick employee permanently then the dismissal can validly take place.

In the present case, the Supreme Court held that the requirements set out in the French labor code to dismiss an employee due to the negative impact of her sick leave absences on the business were not met.

Although, it had been established that the absences had a negative impact of the prospection and client retention department, it did not amount to a disturbance of the company as the employer had failed to prove that this department was essential to the company’s business interests.

Remain the questions of how to determine what an essential department is and how this essentiality can be proven …