France: Proceed Cautiously When Firing for Prolonged Absence

​French employers should be cautious about firing someone for prolonged absences if the fired worker can establish that he or she was psychologically harassed on the job, according to a Jan. 30 French Supreme Court decision.

Labor Code Allows Firing for Disruptive Absence

The French Labor Code generally prohibits dismissing an employee for taking sick leave.

But under the code, an employer can dismiss an employee if his or her sick-leave absence is disruptive for the employer. In such a case, the company must prove that:

• The employee's prolonged or repeated absence is disrupting the company's operations.
• The company needs to permanently replace the absent employee.

French case law suggests that a company must prove one more thing: that the reason for the absences isn't the employer's fault, such as due to psychological harassment.

Employee Prevails Before Lower Court

In a recent case, an employee was on leave because of an accident and then repeatedly took sick leave.

On June 15, 2012, the worker was fired "because of the prolonged absence, which disrupted the proper functioning of the company and required a permanent replacement," according to the company.

The employee sued, arguing that her dismissal was unfair because it was the employer's psychological harassment that caused her to be absent on sick leave.

On Nov. 8, 2017, the Paris Court of Appeal ordered the employer to pay compensation amounting to 18 months' salary for unfair dismissal.

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Company Loses Appeal to French Supreme Court

The French Supreme Court dismissed the company's appeal. As soon as a causal link is established between psychological harassment and an employee's absence, the employer cannot claim that the worker was fired because her absences disrupted the company's operations, the high court ruled.

In its appeal, the company also challenged the burden of proof applied by the Court of Appeal. Once psychological harassment and its effect on the employee have been established, the employer has to prove "that the dismissal for repeated absences of the employee related to illness [was] justified by objective elements unrelated to any harassment," the high court ruled.

The French Supreme Court decided that the employee does not have to prove the causal link between the reason for dismissal and the psychological harassment. When psychological harassment is established, it is up to the employer to justify that the dismissal is based on objective factors unrelated to any harassment.

Cecile Martin is an attorney with Ogletree Deakins in Paris.