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Dismissal due to prolonged sick leave or repeated absences does not imply the existence of discrimination

Published on : 06/11/2026 06 November Nov 11 2026
Newsletter / Recent Case Law
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In a ruling dated September 9, 2026, the French Supreme Court (“Cour de Cassation”) reiterated that it is not sufficient for a dismissal to be based on disruption to the company’s operations caused by the employee’s prolonged absence or repeated absences, leading to the need for a permanent replacement, for this to constitute, in itself, a material factor suggesting the existence of discrimination based on health status (Cass. soc., September 9, 2026, No. 25-14.356).  

In this case, an employee, who had been on repeated sick leave between January 2019 and September 2020, was terminated in January 2021 on the grounds of disruption to the company’s operations and the need to permanently replace her. She sought to have her termination declared null and void, arguing that it was discriminatory based on her health condition. The Court of Appeals ruled in her favor: since the employer had failed to prove either the disruption to the company’s operations or the actual replacement of the absent employee, the Court concluded that discrimination had occurred and declared the termination null and void.  

The Cour de Cassation overturns the Court of Appeals’ ruling: such a termination does not constitute grounds for presuming discrimination. Unless the employer can demonstrate that such prolonged leave led to an organizational disruption and that the employee was replaced within a reasonable time, the termination is not void but merely lacks a genuine and serious cause. 

Key takeaways / practical implications: Even if the dismissal is not automatically void, it remains the employer’s responsibility to prove the disruption caused by the employee’s prolonged absence (unperformed tasks, delays, reliance on temporary staff or overtime, overburdening of colleagues, impact on customers or production…) that necessitated the employee’s replacement. If the employer fails to justify this, the termination may be deemed without real and serious cause, resulting in an order to pay damages that could be substantial.
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