Under French law, the dismissal of a 'protected
employee' i.e. an employee having a mandate of trade union or
staff representative is subject to the prior authorisation of the
French Labour Inspector.
According to the French reported case law, the French Labour
Inspector should check whether – among other things –
the employer company made its best efforts to find a redeployment
solution when the request to terminate a protected employee's
employment is justified by the repeated or long sick leaves
unrelated to an occupational disease.
In a decision rendered on 9 March 2016 (CE 9 March 2016,
n°378129) concerning an authorisation delivered by the French
Labour Inspector to terminate the employment of a communication
assistant holding the mandates of both staff delegate and trade
union representative, the French Administrative Supreme Court
overturned its previous position.
Under French law, sick leaves unrelated to an occupational
disease cannot form the basis of an employment termination
The employer demonstrates that the
employee's long or repeated sick leaves jeopardise the proper
running of the company
The company has no other choice but
to replace him/her on a permanent basis
According to the French Administrative Supreme Court and the
French labour authorities, as far as the protected employees are
concerned, the employer company should in addition have tried to
find a redeployment solution
This redeployment obligation is similar to the one existing in
case of redundancy or dismissal for physical inability.
In our opinion, this obligation is meaningless here considering
that it is not the employee's health condition incompatible
with the performance of his/her current duties which justifies the
request to terminate his/her employment contract, but the negative
and objective consequences of his/her leave for the company.
In this respect, the French Administrative Supreme Court
rendered a more realistic position in its decision dated 9 March
2016. This is because the employer is not required any more to
justify having tried to find a redeployment solution for a
protected employee on sick leave unrelated to an occupational
When requested to authorise the termination in such a situation,
the control of the French Labour Inspector would be limited to the
The absence of link between the
request and the mandate
The reality of the repeated or long
sick leaves and their impact on the proper running of the
The necessity to replace the employee
on a permanent basis
If any, the French Labour Inspector should also take into
account the applicable collective bargaining agreement which may
provide for a prohibition during a certain period of time to
terminate the employment of an employee on sick leave.
We may wonder whether this solution may change the position of
the French Administrative Supreme Court regarding the dismissal for
professional insufficiency. As of today, the employer company
should also try to find a redeployment solution for a protected
employee whose dismissal for professional insufficiency is
Will the French Administrative Supreme Court take the same view
as the French Civil Supreme Court in this respect? Nothing could be
less certain, because it may appear that the employer's duty to
act in good faith commands that he researches a fitter job position
for a protected employee.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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