During the suspension of the employment contract, only the loyalty obligation, which remains during this suspension, may ground the termination of the employee for gross misconduct

In accordance with Article L. 1226-9 of the French Labour Code, an employee whose employment contract is suspended as a result of an occupational accident or disease may only be terminated in the event of gross misconduct or in case of the impossibility of continuing the employment contract.

In a decision published on 20 February 2019, the French Supreme Court stated that in such a case, the gross misconduct of the employee during the suspension of his employment contract can only be characterized where the employee fails to fulfil his loyalty obligation, the only contractual obligation that persists during the suspension of the employment contract.

In this case, the employee, a professional basketball player, had refused to follow the physiotherapy sessions prescribed by the team doctor during his sick leave.

The employee claimed that the termination of his employment contract for serious misconduct was not valid. The French Supreme Court rejected his claim considering that the specific nature of the duties of a professional sportsman required that the employee, in the event of an injury, undergoes any treatment required to restore his physical potential. An employee who does not comply with the treatment protocol then fails to comply with his loyalty obligation, which makes it impossible to continue the employment contract.

But, only the loyalty obligation, which persists during the suspension of the employment contract (and which can be characterized in different ways depending on the employee’s duties), may validly base a dismissal for gross misconduct, the employee’s other contractual obligations being suspended.