Termination of employment leads to the suspension of the employee’s employment contract. As long as he is away from his position, the economic activity of the company continues. In this context, several circumstances may make the employer want to part with this employee and consider firing him even before his return. This may be related, for example, to serious misconduct by an employee, an economic reason, or simply disruption of the company’s operations.
Several questions arise: can an employee be fired while on sick leave? Under what conditions and for what reasons? Do I have to follow a specific procedure? What are the implications of this decision?
Is it possible to be fired while on sick leave?
Illness, health condition or disability cannot be a serious and genuine reason for dismissal. The Labor Code (Article L. 1132-1) establishes the principle of non-discrimination based on health status. Therefore, an employee’s dismissal due to illness is invalid, as it is discriminatory to any letter of dismissal that addresses the employee’s illness. A dismissal found to be discriminatory by an industrial tribunal is also a criminal offense punishable by 3 years imprisonment and a fine of €45,000 (Article 225-2 of the Criminal Code).
Incapacity caused by termination of employment and indicated by professional medicine will justify dismissal on this basis. However, sick leave is not a period of absolute protection from dismissal.
On what grounds can we justify dismissal during sick leave?
Everything will depend on whether the disease has a professional origin or not. Sick leave, if it is of professional origin or as a result of a work accident, protects the employee and makes dismissal very difficult. The business manager cannot in any way refer to simple misconduct or professional inadequacy.
In case of work-related sick leave, the employer can justify the dismissal only in two cases:
Serious or serious violations by the employee.
A serious defect is considered that which makes it impossible to keep the contract. There are two versions.
- The arrested employee commits such a sin as, for example, breaching his duty of loyalty during sick leave;
- The employee is penalized during the disconnection for a malfunction that occurred before the disconnection (if this defect is not foreseen).
L:the impossibility of keeping the contract.
It should be noted that judges interpret this “impossibility” very strictly, so it is difficult to justify dismissal on this basis. In case of so-called “ordinary” sick leave. Then there is less protection in the company from a legal and social point of view. In other words, the employer can terminate the employment contract citing reasons unrelated to any discrimination. In addition to illness, there can be three reasons for dismissal:
- Disciplinary reason or also called “serious violation” during sick leave
Example of serious misconduct during sick leave:
– If the employee lies to the employer about his health condition. If the absent employee carries out other activities that harm the company. If he does hard work at home, although his health does not allow it.
- The economic reason. This could be a restructuring of competitiveness that will lead to the elimination of several jobs.
- And any other real and serious reason, such as disruption of the company’s operations
Thus, the employer can give reasons such as professional inadequacy, unsatisfactory results of the employee or even non-fulfillment of contractual obligations. Moreover, in the case of dismissal during ordinary sick leave, the employer can refer to the disruption of the company’s activities. This is the most common case where sick leave is repeated, such as in case of burnout.
If the employer cannot fire employees for health reasons, then he can mention the organizational problems caused by repeated absences. Absenteeism can have a detrimental effect on the proper functioning of the company. Disruption can be cited by the employer, especially in a situation where the sick leave is extended over time. The length and repetitive nature of an employee’s absences may force the employer to permanently replace him. In this case, he is able to initiate dismissal proceedings.
In advance, he must be able to justify two cumulative conditions. Both of these conditions should be clearly stated in the termination letter and supported by evidence (very unhappy customers, heavy workload transferred to other employees, serious delays in deliveries, etc.).
Depression or increased stress caused by a situation of moral harassment cannot be grounds for dismissal
The employee’s position, his qualifications, his exact function in the company and the employee’s place of work will be scrutinized by the judges with utmost care. It will also be scrutinized by the industrial tribunal, the company’s field of activity. If there is, for example, a growing labor shortage, the decision may benefit the employer more. An employer may also rely on the duration and frequency of absences of its employee to justify its replacement.
If the inconvenience caused is proved to be untrue, the dismissal will be declared by the Industrial Tribunal to be without genuine and serious cause. If the disorder that caused the dismissal is not proven, then the dismissal becomes without a real and serious reason.
Please note that if the employer is responsible for the employee’s illness, which caused the employee’s long absences, he cannot fire him on sick leave. In effect, the employer failed in its safety obligation by failing to protect the employee. For example, depression or increased stress with the situation moral harassment cannot cause dismissal due to business interruption.
What is the procedure for dismissal on sick leave?
If there is a valid reason for dismissal, the employer can start the normal dismissal procedure without waiting for the employee’s reinstatement. Therefore, he can perfectly send a notice of dismissal during sick leave. The procedure for dismissal will depend on what the employer wishes to appeal.
Dismissal for company disruption or misconduct follows the procedure for dismissal for personal reasons;
- an invitation to an initial interview
- arranging and conducting the interview
- sending a letter of resignation
- notice of dismissal
- notice respect
Dismissals for economic reasons must be justified for economic reasons and must follow a strict procedure that varies depending on the number of employees dismissed and the size of the company. It generally includes:
- proposal for reclassification of employees
- creating a dismissal order
- prioritizing rework
- take advantage of the occupational safety contract
- arranging an initial interview
- sending a resignation letter with mandatory information
- notice of dismissal
A special case of professional incapacity
A health condition may have implications for an employee’s ability to return to work. Sometimes it happens that you are not fit to perform the tasks for which you have worked. In this case, the employer can apply for dismissal due to physical incapacity. This reason is valid only to the extent that the employer proves that it is impossible to offer a job or that the employee rejected the employer’s offer.
The procedure is specific and requires the intervention of an occupational physician who will assess the situation, regardless of whether or not the employee is against continuing to work. Either because his health prevents him from working again, or because resuming the work in question would seriously harm his health. This type of dismissal follows a specific procedure and compensation varies.
Sick leave and simultaneous notice. what consequences?
During the notice period prior to dismissal, an employee may be placed on sick leave. Depending on the type of working holiday you take, the consequences differ. in the case of ordinary sick leave, it does not affect your notice period. Sick leave of professional origin or after a work accident interrupts the notice period. The latter will be extended by the total duration of the sick leave.
In conclusion, it is worth remembering that dismissal of an employee during sick leave is possible. However, the dismissal must be particularly well justified and supported by the employer, otherwise it could become a source of serious dispute with an industrial tribunal.