If you are facing a substantial rate of absent employees, you may be tempted to dissuade them from taking leaves, and especially sickness / work related accident leaves, which are frequent inFranceand quite unpredictable for companies.

Some employers had the idea to organise systematic meetings with employees returning from leave, to educate them on the consequences of leaves on the organisation of the company (and particularly the disruption triggered thereby).

This could have sound as a good idea, but unfortunately the French Supreme Court did not really share this opinion!

In the decision at stake, an employees’ union complained about such meetings, on the grounds that they constituted indirect discrimination against employees returning from sickness / work related accident leaves, based on their state of health.

Indirect discrimination is defined as practices which are apparently neutral but may result in a disadvantage for certain employees, based on specific criteria considered as discriminatory by French law. Such practices are generally prohibited by French employment law, and may be justified as legitimate by the employer only if they are objectively justified by a legitimate goal, and if the means to achieve such goal are necessary and appropriate.

The French Supreme Court agreed with the position of the claimant, on the grounds that despite the apparent neutrality of the system, which had been applied to every employee regardless of the reason of their absence, it should be considered as discriminatory since it necessarily questioned the appropriateness of such leaves and the ability of the employees to benefit or not from them.

Educating employees is therefore not a (valid) solution against absenteeism. Alternatives would rather be look at the causes for sickness leaves / work accidents (bad work atmosphere, non flexible hours of work, deteriorated working conditions), together with, if needed, the occupational health services.

 

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