The employer must be able to rely on the employee’s presence at the workplace. However, the employee may be prevented from attending the workplace for health reasons. This does not, in principle, constitute a negligence or a cause for dismissal. The employee is also protected against dismissal if he notifies his employer on the first day of his absence and submits a medical certificate to the employer no later than the third day of his absence (Article L.121-6 of the Labour Code).

However, this protection is not absolute, as case law recognises that a long sick leave is a cause for termination of the employment contract if it disrupts the organisation and functioning of the company: „Absences due to illness rank among the normal risks of any company and absenteeism for health reasons can only be a cause for termination of the employment contract when, on the one hand, the absences are long or numerous and repeated and when, on the other hand, they cause considerable inconvenience in the proper functioning of the company without any certainty or likelihood of the situation improving in the near future. “ (Court of Appeal, 11 January 2018, 43477).

It should be noted that in this case, the Court of Appeal considered that the absences of 152 hours spread over 4 periods in 2013 and 55 hours over two periods in 2014 were not to be qualified as excessive.

Importance of the disorganization of the company due to the employee’s sick leave

The Court of Appeal sets out two conditions for a long sick leave to be considered as a valid reason for dismissal: i) long and repeated absences and ii) considerable inconvenience in the operation of the business with no certainty or likelihood of improvement in the near future so that the employer can no longer rely on the regular and effective cooperation of the employee in question.

Strictly speaking, there is no standard duration or frequency for qualifying an employee’s absence as prolonged absenteeism: the judge will assess the situation according to the disruption of the service and the disorganization of the company caused by the employee’s repeated absences. This disruption will be assessed in concreto: size of the company, tasks to be carried out by the employee, frequency of absences, ability of the company to replace the employee, etc.

The Court considered a dismissal for a long sick leave as valid in the following case:

„It follows from these documents as well as from W.’s testimonial attestation that the high rate of unavailable days due to sick leave, which often straddled periods of rest of one or more days, i.e. at a time when the employer was in principle entitled to expect the employee to return to work, resulted in numerous duty board changes and overtime for J.’s colleagues, generating additional financial costs for the employer.“ (Court of Appeal, 13 June 2019, 45150)

The case law will analyse whether the absences are not of such importance that it is no longer a normal risk that the company must bear (Court of Appeal, 25 April 2019, CAL-2018-00776).

In addition to the duration and frequency, the judge will also take into account the position held in the company and the importance of the assignment given to the employee.

Similarly, case law, for an employee entrusted with an important mission, has held that „While it is acceptable that, in the event of short absences, the employer asks other colleagues to carry out one or other task of an employee absent due to work incapacity, he cannot ask them to carry out, for a period of several weeks or even months, the mission that is the responsibility of the absent employee.“ (CSJ, 3rd, 25 April 2019, CAL-2018-00776)

The Court further confirms that the disorganisation of the company is presumed in the case of frequent absences. It is therefore up to the employee to prove that his absence did not contribute to the disorganisation of the company: „in the event of frequent absences of such importance that they are no longer to be considered as a normal risk to be borne by any company, the disruption within the company is presumed and does not have to be proven by the employer„. (CSJ, 8th, 13 June 2019, 45150).

Consideration of the employee’s illness and its origin for the qualification of habitual absenteeism

However, case law will take into consideration the origin of the illness.  In some cases, depending on the illness that caused the employee’s absence, the judges will decide that the risk linked to the employee’s absence is borne by the employer, regardless of the disorganisation that this absence causes for the company.

1) sick leave due to the company’s activity: example of work-related accidents and moral harassment

It has been decided that dismissal for longer sick leave is not justified if the illness that caused the absences originates from the employee’s work.

Thus, the Court recalled that „A distinction must be made between absences due to the employee’s inherent deficient state of health and absences that originate from an accident at work or the employee’s professional activity, which cannot justify dismissal, given that the employer bears the risks generated by the activity of his company.“ (Court of Appeal 22 October 2020, CAL-2019-00442)

In a case of moral harassment in the workplace (established by medical certificates), faced with a case of long sick leave, the Court held that „the employee was subjected to acts of moral violence in the workplace at the root of her absenteeism, which the employer should have remedied“ and ruled that the dismissal was unfair. (Court of Appeal, 19 April 2018, no. 44623)

Thus, when the illness resulting in the employee’s absenteeism has its direct origin in the activity of the company in which he or she is employed, the case law refuses to qualify it as habitual absenteeism.

2) Likelihood of improvement in the near future: example of leave due to pregnancy complication

Case law has admitted in a case where the frequent absence of an employee caused disorganization in the company that these „absences of M. linked to the complications of her pregnancies do not meet the conditions of habitual absenteeism justifying dismissal. Indeed, even if the absences were numerous and may have caused disorganization within the department to which the employee was assigned, the fact remains that the absences were solely related to a pathological condition resulting from the pregnancy and that it is therefore not established that the employer could no longer have counted on sufficiently regular collaboration from the employee for the company’s operating requirements at the time of the latter’s return from her parental leave. (CSJ, 8th, 11 July 2019, CAL-2018-00686)

This case constitutes a reminder that the dismissal can be considered as abusive if there is a „probability of improvement in the near future„, i.e. a high probability that the employee will no longer be absent in the near future.