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 unless:

• 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 disease.

When requested to authorise the termination in such a situation, the control of the French Labour Inspector would be limited to the following topics:

• 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 company
• 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 contemplated.

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.

How Reed Smith can assist The Reed Smith Paris Employment team has strong experience in handling labor issues. Séverine Martel, partner, is leading a three-people team dedicated to both individual and collective working relationships matters. They remain available to share with you their experience and address your questions.

Client Alert 2016-097