A dismissal based on repeated sick leaves that have disorganized the business and forced a permanent replacement is not always discriminatory. In a ruling dated September 9, 2026, the French Supreme Court confirmed that, where the employer falls short of proving its grounds, such a dismissal is unfair rather than void.
In case at hand, after some twenty months of intermittent sick leave, an employee was dismissed for the disruption her absences had caused. She argued the real reason was her health. The Grenoble Court of Appeal agreed and, since the employer had proved neither the disruption nor the replacement, declared the dismissal null and void.
The Supreme Court was less persuaded and overturned the ruling. While French law forbids dismissing someone because of their health, it does not prevent an employer from pursuing such a dismissal where the absences have genuinely disorganized the business. A dismissal built on “disruption and replacement” is therefore not, in itself, a sign of discrimination. If the employer cannot prove the disruption and a permanent replacement within a reasonable time, the dismissal is merely unfair.
The label matters, because “unfair” means the capped statutory scale, while “void” opens the door to reinstatement and to damages starting at six months’ salary. The financial difference can be considerable.
Two practical takeaways:
- First, the employer must be able to evidence both the disruption caused by the absences and the permanent replacement and should document them contemporaneously: proof assembled once litigation is under way carries little weight before the court.
- Second, separate evidence of a health-related motive may still render the dismissal void. Employers should therefore be cautious with internal communications: an email, a text, a Teams message or even a demonstrable change in attitude towards the absent employee may itself amount to that evidence.
Link to the Supreme Court’s decision : Click here
