Dismissal during illness: when are employees protected?

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Date:
02 May 2019

ILO, Employment & Benefits

By:
Guy Castegnaro, Ariane Claverie

Employees who cannot work due to illness are, in principle, protected against dismissal. On 15 November 2018 the Court of Appeal reiterated the conditions which must be met for this protection to apply and, failing this, the circumstances in which an employee's absence may justify dismissal for serious misconduct.(1)

Legal background

To benefit from legal protection against dismissal,(2) including for serious misconduct, an employee who cannot work due to illness must:

  • inform their employer of their illness on the day of their absence; and
  • provide their employer with a medical certificate confirming that they are unable to work and for how long within three days of their absence.

Once their employer has been informed of their absence, an employee is protected against dismissal until the end of their third day of absence. If the employee does not submit a medical certificate by the end of their third day of absence, the employer is entitled to dismiss them.

Facts

On 2 October 2014 an employee who had been unjustifiably absent since 26 September 2014 was dismissed with immediate effect because he had not submitted an extended medical certificate within the statutory three-day deadline. On 25 September 2014, the first day of the extended absence period, the employee had informed his employer by email that he would be unable to work until 3 October 2014. However, the employer did not receive the medical certificate until 13 October 2014 – 19 days later.

Believing that he was entitled to legal protection, the employee served the employer with a summons to appear before a court to have his dismissal ruled as unfair. In addition, he asserted that the absence in question was not serious enough to justify dismissal without notice.

Decision

No protection if employee fails to submit medical certificate within three days

The Court of Appeal had to ascertain whether the employee was protected against dismissal in line with the abovementioned rules.

The court established that while the employer had been informed of the extension of the illness period on the first day, the employee had failed to prove that the employer had received the medical certificate by the third day of the extension.

Thus, although the employer had received a certificate confirming the employee's illness during the disputed period after the deadline, it had not received this on 2 October 2014 (ie, the day of the dismissal).

In addition, the court took the opportunity to reiterate the fact that the receipt of a certificate by the Caisse Nationale de Santé (the national health fund) does not demonstrate that an employer received a certificate at the same time.(3)

In this context, the court concluded that the dismissal announced on 2 October 2014 was valid under Article L121-6 of the Labour Code.

Unjustified absence may justify dismissal with immediate effect

It is established case law that if an employee cannot prove that they submitted a medical certificate to their employer within three days of an absence, this "does not necessarily automatically constitute a fact or example of misconduct authorising the employee's immediate dismissal".(4)

The court reiterated the fact that "the gravity of the misconduct is always interpreted according to the specific circumstances of the case in point".

After noting that the employee had worked as a receptionist in a medium-sized company, the court decided that his absence had "inevitably resulted in organisational problems". Further, the court highlighted the casual way in which the employee had left the employer "totally unaware of their situation and what should happen to their work".

The unique nature of the case and the fact that the employee had worked for the company for nine years did not affect the court's decision. Indeed, the court ruled that under such conditions, the employee's absence constituted serious enough misconduct to justify his dismissal with immediate effect.

 

Endnotes

(1) Register 2018-00120.

(2) Article L 121-6 (3) of the Labour Code.

(3) To prove that the medical certificate had been received by the employer in time, the employee alleged that "the certificate was sent to the Caisse Nationale de Santé on the same day, and the latter [had] received the certificate without any problems".

(4) See, in particular, Court of Appeal, 15 December 2016, Register 43304.