« Employee’s health vs health of the Business»

What’s the rule ?

It has repeatedly been decided by the Employment Court that chronic absenteeism due to health reasons may be a cause for termination of the employment contract.
Chronic absenteeism can be defined as absence from work for illness reason for more than 26 consecutive weeks of employment.
It is commonly accepted that the employee in sick leave’s protection (which must be recorded by medical certificates) stops after 26 uninterrupted weeks of sickness. The company is then allowed to dismiss the employee.
However, the dismissal letter must be carefully drafted in order to prevent the dismissal from being qualified as abusive.


Don’t apply the rule in a haste !

Indeed, the employer must still prove that the grounds for the dismissal are real and serious.
In this respect, Magistrates will consider that chronic absenteeism will be a reasonable ground for dismissal if and only if “on the one hand, the absences are long or numerous and repeated and, on the other hand, there is considerable negative impact in the operation of the company, without certainty or even probability of improvement in the near future” (CA 14.11.13, n° 38060).
As a case-by-case approach will be taken, it would be wise to ascertain your ground by answering the following questions:

1-    Have you precisely identified the number of days of sick leave (i.e per month, year, percentage of absenteeism etc…).

2-    Can you clearly describe how the employee’s absence has negatively impacted the business (strain on employee’s co-workers, loss of efficiency, internal organizational problems, financial impact, etc…)

3-    Are the chances of the employee getting better rather slim to non-existent?

If you have been able to answer “yes” “yes” and “yes” to those three questions, dismissing the employee on the grounds of “chronic absenteeism” may not be deemed abusive.