Being a rally car driver during sickness leave: what margin for the employer?

When faced with the situation of employees who are absent due to sickness, French employers are required to distinguish between application of social security regulations and labour law rules.

Under social security regulations, an employee can have his daily allowance suspended if it can be shown that he engaged in an unauthorized activity during his sick leave. However, an employer is not necessarily entitled to discipline an employee or terminate his employment contract on the basis of such unauthorised activity.

This distinction has been confirmed in situations in which a determination was made as to whether or not the practice of a sport was compatible with the obligations of an employee on sick leave. Under the prevailing case law, the fact that the sport activity is not authorized during the sick leave should have no bearing on the employee’s position within the company as such. In similar situations, French case law only entitles an employer to discipline or dismiss an employee if the employee has violated his duty of loyalty to the employer.

In a recent case, an employee with the job of a breakdown mechanic was diagnosed with an occupational disease which affected both his hands. As a result, he was placed on several sick leaves and declared unfit for driving vehicles. Surprisingly, this did not prevent him from practicing the activity of a rally car driver during his numerous sickness leaves. When the employer discovered this, it terminated his employment contract and the employee filed a claim for unfair dismissal.

The Court of appeal dismissed the employee’s claim and ruled that the termination of the employment contract was valid since his rally car driving activity was both incompatible and in contradiction with his occupational disease, even though this activity was performed for leisure purposes.

The Supreme court reversed the decision of the Court of appeal and held that the practice of an activity during a sick leave is not per se a breach of the duty of loyalty. The Supreme court considered that the dismissal could only be justified if the employee’s behaviour was detrimental to the employer or the company.

Surprisingly, this decision is consistent with previous case law which tends to assess very strictly the extent and scope of the duty of loyalty in these situations. As a result, it seems that the violation of the duty of loyalty would be more likely to be found in instances in which the employee engaged in activities during the sickness leave which competed with those of the employee.

In conclusion, an employer should be extremely cautious when considering the dismissal of an employee on sick leave in this context and be able to justify that the external activity of the employee during the sickness leave has been detrimental to the company.