Court of cassation, Social division, 9 september 2026, n° 25-14.356
A failure to establish that an employee’s absences disrupted the functioning of the business and necessitated their permanent replacement deprives a dismissal on that ground of real and serious cause. It is not, however, sufficient in itself to suggest the existence of discrimination based on the employee’s health.
In this case, an employee hired in 2018 was placed on sick leave on several occasions from January 28th, 2019. Her last period of sick leave, which began on September 29th, 2020, continued until her dismissal on January 7th, 2021. She was dismissed on the grounds that her prolonged and repeated absences were disrupting the functioning of the business and made her permanent replacement necessary. The employee considered that her dismissal was a discriminatory measure, based on her health.
The Grenoble Court of Appeal upheld this argument, and declared the dismissal null and void. It held that the mere fact that a measure had been taken against an employee on sick leave was sufficient to suggest a health-related discrimination, since the employer had established neither the alleged disruption of the functioning of the business, nor the necessity to find a permanent replacement for the employee.
The French Supreme Court rejected the reasoning. It first reiterated that, while Article L. 1132-1 of the French Labor Code prohibits the dismissal of an employee on the grounds of their health, it does not preclude a dismissal based on the objective situation of the business. This applies where the functioning of the business is disrupted by the employees’ absences, and that disruption makes it necessary to replace them permanently. The French Supreme Court then reiterated that when an employee considers themselves wronged because the principle of equal treatment has not been applied to them, they must establish facts from which it may be presumed that there has been direct or indirect discrimination. However, according to the French Supreme Court, a dismissal on such grounds cannot, in itself, constitute a fact from which it may be presumed that there has been a discrimination. Accordingly, where the employer fails to establish the disruption of the business and the permanent replacement of the employee within a reasonable period, the dismissal is not null and void, but lacks real and serious cause.
Therefore, the employee is only entitled to compensation for dismissal without real and serious cause, the amount of which is determined in accordance with the scale set out in Article L. 1235-3 of the French Labor Code; and not to the compensation of at least six months’ salary.