Dismissal of an employee on sick leave in the private sector
Verified 12 April 2024 - Directorate for Legal and Administrative Information (Prime Minister)
An employee may not not to be fired because he's sick person. It's a discrimination related to health status. However, dismissal remains possible in specific situations. In particular, where its absence disrupts the functioning of the company, in the event of economic difficulties, for disciplinary reasons, for incompetence. We're doing an update on the regulations.
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Absence disturbing the functioning of the company
There's disturbance the operation of the company if 2 conditions the following are combined:
- The absence prolonged or absences repeated of the employee results in disorganization
- There's obligation for the employer of replace the employee definitely
Warning
Prolonged or repeated absence should not be related to failure of the employer its obligation to safety (e.g. absences related to psychological harassment).
One collective agreement or a company agreement may provide for guarantee of employment prohibiting dismissal on grounds of illness (for example, for 6 months).
A simulator is used to search for the collective agreement with the company's name or number Siret :
The employer must respect the procedure for dismissal on personal grounds.
In the letter of termination, the employer must provide the justification for disturbance of the operation of the company.
It must also justify the need for permanent replacement the employee absent by a DTA: titleContent.
If the employee fulfills the conditions, he is entitled to the following allowances:
Please note
If the employee cannot not give notice because he is ill, the notice compensation is not available to him not due.
Economic difficulties
When the company has difficulties economic (or if it closes definitely), it may dismiss a sick employee. The economic reason for the dismissal may result from a deletion or transformation of employment or alteration of an essential element of the contract rejected by the employee.
Dismissal on economic grounds must be realized in the usual conditions.
If the employee fulfills the conditions, he is entitled to the following allowances:
Please note
If the employee cannot not give notice because he is ill, the notice compensation is not available to him not due.
Disciplinary grounds
The employee may be dismissed lasting his sick leave if he committed a fault. This can be the consequence any of the following:
- Failure To Comply from sick employee to his obligations (it sends its work stoppage late despite the formal notice from the employer of justify for example, his absence)
- Fault clerk front sick leave
- Procedure disciplinary committed front sick leave
FYI
The employer has a period of 2 months to initiate disciplinary proceedings.
That period shall begin on the date on which the employer was aware of the facts reproached.
The employer must respect the procedure for dismissal on personal grounds.
The letter must state the reason for dismissal.
If the employee fulfills the conditions, he is entitled to the following allowances:
In the event of dismissal for gross or serious misconduct, the allowance shall not be not paid. However, treaty provisions, the employment contract or a use in the company may foresee the payment of that allowance.
A simulator is used to search for the collective agreement with the company's name or Siret number:
Physical incapacity
When the illness or accident work with consequences on the working abilities of the employee, the occupational physician can declare it unfit at his post.
That inability established at the end of work stoppage gives the employer the possibility to dismiss the employee for:
- Original incapacity unprofessional, i.e. following a judgment common disease
- Original incapacity professional, i.e. when it is linked to a industrial accident or a occupational disease
When the employment contract is terminated, the employer duty comply with the dismissal on personal grounds.
FYI
In the letter of termination, the employer shall specify theincapacity and inability to retrain or one of the 2 case of exemption from reclassification authorized by law.
The rules are different according to whether the incapacity pronounced by the occupational physician follows a accident at work or to a occupational disease or no.
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Incapacity following non-occupational disease or accident
Employee dismissed due to incapacity of non-professional origin, i.e. following an illness or non-occupational accident, may receive severance pay.
In order to receive this allowance, the employee must have at least 8 months of uninterrupted seniority to the same employer.
The amount of such compensation shall be at least equal to statutory severance pay (except treaty provisions more favorable).
When the employee is dismissed, there is no notice. The employee don't touch compensation for notice.
Of treaty provisions may provide for the payment of compensation in lieu of notice.
The period of notice not given is taking into account to determine the calculation of the statutory severance pay.
Example :
An employee is dismissed for incapacity due to illness. The employee has 8 years and 3 months of service in the company at the time of notification of his dismissal. The period of notice shall be 2 months. The length of service taken into account in calculating the severance pay will be 8 years and 5 months.
If the employee meets the conditions, he can benefit from Return to Employment Assistance (RWA)However, there may be deferred compensation and a waiting period.
Please note
The employee may receive compensation for notice when the dismissal is reclassified without real and serious cause by the prud'hommes council due to the employer's failure to fulfill its obligations (e.g. failure to seek reclassification).
Accident at work Incapacity due to occupational
The employee who was fired as a result of a incapacity of occupational origin, i.e. following a accident at work or a occupational diseaseshall receive the following allowances:
- Special severance pay. Its amount shall be at least equal to double of statutory severance pay (except treaty provisions more favorable). It is paid unconditional seniority.
- Compensatory allowance equal to the compensation for notice
Please note
In the event of the employee's undue refusal to reclassify, he or she shall receive the statutory severance pay (except treaty provisions more favorable).
If the employee meets the conditions, he can benefit from Return to Employment Assistance (RWA), but there can be delays in compensation and a waiting period.
Other grounds
Yes, the employee may be dismissed if the employer can prove that pattern which is based on a real and serious cause. For example, professional incompetence, misunderstanding, loss of confidence.
The employer must follow the procedure for dismissal on personal grounds.
If the employee fulfills the conditions, he is entitled to the following allowances:
Please note
If the employee cannot not give notice because he is ill, the notice compensation is not available to him not due.
Who can help me?
Find who can answer your questions in your region
Telephone administrative information - Allo Public Service
For more information on this topic, you can contact Allô Service Public.
Attention: the service does not have access to users' personal files and cannot therefore provide information on their status.
He does not respond questions relating to unemployment compensation and representations to France Labor (formerly Pôle emploi), the officials or contractual of the fpublic service, the amount or payment of contributions social, wage or management.
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The informants who answer you belong to the ministry responsible for labor.
Unfitness as a result of non-occupational disease or accident
Accident at work Unfitness as a result of an occupational disease.
Prohibited grounds for dismissal
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