A dismissal may be considered as unfair if it is based on the mistakes of an employee resulting from the employee’s illness

The law

Under French employment law, any mistake or error made by an employee in the context of his/her employment may theoretically justify his/her dismissal for disciplinary reasons or for professional incompetence. However, when dealing with the consequences of an employee’s illness on his/her work, employers must bear in mind a series of principles applicable under French employment law.

In particular, and as part of the employers’ duty of care with respect to the employees’ health and safety, employers should comply strictly with the opinions and recommendations of the occupational health physician. Moreover, dismissals based on an employee’s health and illness are generally prohibited unless the termination of the employment is based on the disruption of the company’s business resulting from the employee’s long-term absence and the need to proceed with his/her permanent replacement. There also exists a very specific procedure, which involves the intervention of the occupational health physician, that employers must comply with in case of dismissal based on an employee’s unfitness to work. In this context, employers are required to obtain an opinion from the occupational health physician declaring the employee unfit to work in order to dismiss him/her on the basis of his/her health situation.

In this context, is it possible for an employer to invoke errors committed by an employee as a basis for dismissal when such errors are linked to the employee’s health?

The case

In a recent ruling rendered by the Supreme Court on 18^th March 2015, an employee was dismissed for disciplinary reasons on the basis of errors that she made in the course of her employment with her employer. In this case, the employer was aware of the link between the employee’s lack of vigilance and her health since the occupational health physician had been asked to examine the employee’s ability to carry out her duties and had concluded that she was fit to continue working without any reservations. Following her dismissal, the employee filed an action with the employment tribunal claiming the payment of damages for unfair dismissal.

The Supreme Court upheld the findings of the Court of appeal and considered that, insofar as the errors reproached to the employee were at least partly due to the pathology she was suffering from and since the employer knew that the employee’s lack of vigilance was linked to her pathology, the dismissal based on such errors was therefore unfair.

Perspective

Even though such decision is not particularly surprising as protection of an employee’s health is strictly enforced under French employment law, it is true that the underlying rationale for the ruling is quite difficult to determine, as the ruling of the Supreme Court did not elaborate on the legal reasons justifying the upholding of the claim against the employer. However, in this case, the appellate judges appear to have considered that the fact of terminating the employee for errors that she committed as a result of her pathology amounted to a dismissal for unfitness at work. The dismissal was therefore not valid as it did not comply with the requirement to have an opinion from the occupational health physician declaring the employee unfit to work.

In such a case, and faced with the opinion of the physician considering the employee able to carry out his/her duties, a more recommended course of action would have been for the employer to appeal against the findings of the occupational health physician in order to obtain a declaration of unfitness. An employer should, as a consequence of the holding, be extremely cautious when faced with any error or underperformance on the part of its employees when such situation stems from the employees’ health situation. In such circumstances, the employer would be wise to strictly follow the specific procedure relating to unfitness at work.