Accident du travail et protection du travailleur

On the facts :

Under an open-ended employment contract dated June 9, 2011, Mr. T. was hired as a sales employee and cashier by a distribution company. He suffered an accident at work on May 29, 2012 and was placed on sick leave until October 31, 2013. In formal notices dated November 28 and December 9, 2013, his employer asked him to justify his absence since October 31, 2013.

However, Mr. T. only sent his employer a new work stoppage from December 1ᵉʳ, 2013 to March 31, 2014. It was under these conditions, that the employer took the decision to dismiss Mr. T. for gross misconduct, namely his unjustified absences since November 1ᵉʳ, 2013.

Principles governing absence from work in the event of sick leave :

Employer's obligations

There are a number of steps to follow:

• Step 1: Establish a salary certificate that is essential to enable the employee to receive the daily allowances they are entitled to. It must be submitted either through net-entreprises.fr or through certified payroll software, or it can also be sent to the employee's Primary Health Insurance Fund. The employer must also provide additional compensation to the employee who has completed one year of service, has submitted a medical certificate within 48 hours of their sick leave, and, of course, is receiving daily allowances from Social Security and is receiving medical care in France or within one of the countries in the European Economic Area.
• Step 2: Verify that the employee is indeed present at their home during the designated hours of restricted movement specified in the sick leave.
• Step 3: Ensure that the employee's health condition aligns with the sick leave and its duration: a follow-up examination can be arranged by a physician of their choice, specialized in this type of assessment. The employee does not need to be notified.
• Step 4: Analyze the response to the letter of formal notice in case of non-receipt of the extension of sick leave.
• Step 5: Make a decision.

The employee's obligations:

1. The employee has a 48-hour deadline to provide their employer with a medical certificate for sick leave, unless specific provisions exist in certain collective agreements or their employment contract. The law of January 19, 1978 on monthly salary payment even makes this obligation a condition for the benefit of continued salary payments, which the employer is responsible for providing to employees. It is worth noting, however, that the medical certificate can be replaced by another document that informs the employer of the sick leave (Court of Cassation October 4, 1990). Similarly, an employer who becomes aware of the employee's illness, for example, through a phone call or because the indisposed employee had requested and obtained permission to leave the workplace, cannot terminate the employment contract by citing the employee's failure to adhere to formalities (Court of Cassation May 6, 1998).
2. The employee must, if necessary, undergo a medical follow-up examination. This is in exchange for continued salary payments during the absence due to illness or an accident, which includes this possibility. This medical follow-up examination is solely intended to verify whether the employer is obligated to pay any additional allowances that may be imposed on the employee. It can also serve as a means to take action against the employee if necessary.
3. An employee whose absence due to illness has lasted for at least 30 days is required to undergo a mandatory return-to-work medical examination upon resuming work, and at the latest within eight days. The same applies to repeated absences for health reasons. This examination is conducted by the occupational health physician. The purpose of this medical examination is to assess the employee's fitness to resume their previous position, the necessity of adjusting working conditions, or the need for the employee's rehabilitation, or possibly one of these measures.
4. During sick leave, the employee must refrain from engaging in any professional activity. It is evident that working during sick leave demonstrates that their unavailability is not genuine.
5. The suspension of the employment contract due to illness or accident does not relieve the employee of their duty of loyalty towards the employer. This concept corresponds to the good faith execution of the employment contract by the employee, even when it is suspended due to illness. Nevertheless, the employee is exempt from the obligation to provide their work performance and is not required to maintain collaboration with the employer during this period. Thus, refusing to contact colleagues during sick leave cannot, under any circumstances, justify the termination of the employee (Court of Cassation June 15, 1999).
6. Naturally, the employee must return to their position at the end of their sick leave.

On the scope of the judgment of the Court of Cassation:

This judgment has overturned a decision from the Court of Appeal of Paris dated October 14, 2020. In fact, to dismiss Mr. T.'s request for the nullity of the termination of his employment contract, the Court, after noting that the employee had been absent from May 29, 2012, to October 31, 2013, due to a workplace accident on May 29, 2012, and that the termination letter accused an unjustified absence since November 1, 2013, despite two formal notices on November 28 and December 9, 2013, first held that:

1. The employee did not provide evidence that he had demonstrated his intention to return to work or that he had requested the employer to that effect.
2. That he cannot blame his employer for the absence of this return-to-work examination.
3. The termination carried out without this return-to-work examination does not automatically imply the nullity of the termination. Nullity is only incurred if the alleged serious misconduct is not proven.

The court had even taken care to add that as long as the employee had not expressed a willingness to return to work or requested the organization of the return-to-work examination, no misconduct could be attributed to the employer. Furthermore, the court also noted that the employee did not demonstrate having submitted any other sick leave certificates to the employer after October 31, 2013, except for a sick leave certificate from December 1, 2013, to March 31, 2014. In contrast, the employer established having sent two formal notices on November 28 and December 9, 2013. As a result, there was an unjustified absence between November 1 and November 30, inclusive, despite at least one formal notice during that period. This fact was sufficient to establish serious misconduct and justify the termination.

However, this decision was overturned by the Court of Cassation on June 1, 2023, rightly recalling the existence of the employee's duty of loyalty. It is in accordance with the following legal provisions that it was able to annul the decision of the Court of Appeal of Paris: the termination in the case of sick leave is currently governed by Articles L. 1226-7, L. 1226-9, L. 1226-13, R. 4624-22, and R. 4624-23 of the labor code.

This is how a portion of Article L. 1226-7 of the Labor Code notably states:

"The employment contract of an employee who is a victim of a work-related accident, other than a commuting accident, or an occupational disease, is suspended for the duration of the sick leave caused by the accident or disease."

And Article L. 1226-13 of the Labor Code states:

"Any termination of the employment contract pronounced in violation of the provisions of Articles L. 1226-9 and L. 1226-18 is null."

But it is primarily Article L. 1226-9 of the Labor Code that enabled the Court of Cassation to render its judgment, which is written as follows:

"During periods of suspension of the employment contract, the employer can only terminate the contract if they can demonstrate either serious misconduct on the part of the employee or their inability to maintain the contract for reasons unrelated to the accident or illness."

This means that in the absence of serious misconduct by the employee or the ability to maintain the contract for reasons unrelated to the accident, the termination is null. However, in such a case, the Court of Cassation, in its judgment of June 1, 2023, emphasizes that the employer can only reproach the employee for breaches of the duty of loyalty. In this case, the company did not substantiate Mr. T.'s breach of his duty of loyalty.

It is highly likely that many future decisions will need to precisely define the duty of loyalty for employees. In fact, the Court of Cassation has already begun to establish this in a judgment from February 1, 2023, where it provided some clarifications on the observance of the duty of loyalty for employees during sick leave.

It has already ruled that:

• L’exercice d’une activité, pendant un arrêt de travail provoqué par la maladie, ne constitue pas en lui-même un manquement à l’obligation de loyauté qui subsiste pendant la durée de cet arrêt ;
• Pour fonder un licenciement, l’acte commis par le salarié durant la suspension de son contrat de travail doit causer un préjudice à l’employeur ou à l’entreprise ;
• Maintaining full salary payments during the period of sick leave, by itself, does not constitute harm to the employer.

Indeed, this was the case of an employee of RATP who had participated in badminton competitions during his sick leave, which was initially due to wrist, arm, and/or neck pain.