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Evolving case law: navigating dismissals, disability accommodations, and workplace misconduct

Published on : 31/07/2025 31 July Jul 07 2025
Newsletter / Recent Case Law
Newsletter

Depriving an employee on sick leave of any activity and of all means of accessing company premises amounts to a verbal dismissal 


Under French law, validly dismissing an employee for a personal rationale requires compliances with a process that involves several different steps, amongst which: 

• the summoning of the employee to a “preliminary meeting”, and the holding of said meeting (Article L. 1232-2 of the French Labor Code), 

• the notification of the decision to dismiss via a letter detailing the reasons underlying the termination that is sent via registered mail with acknowledgment of receipt (Article L. 1232-6 of the French Labor Code). 

Based on these principles, case law considers that where an employer manifests their irrevocable will to terminate the employment contract before the preliminary meeting has taken place, the dismissal is a verbal dismissal. As verbal dismissals are not motivated, they are deemed to be without a real and serious cause.

It is those principles that the Cour de cassation (highest French civil Court) applied in a recent ruling. 

In the case at hand, an employee on sick leave had given back, per his employer’s request, his company car, his set of company keys and badges, and the files he dealt with had been reclaimed. These elements marked the manifestation, on the employer’s part, of the irrevocable decision to terminate the employment contract.

Although these principles are not new, this recent illustration of how they are applied should serve as a reminder to employers to exercise caution when requesting the restitution of corporate property from employees on sick leave.
 
Solutions may differ depending on the conditions of use of the property in question (there is, for instance, a difference between a company car that may also be used for personal reasons, and a company car that may only be used for the performance of the employment contract). In any case, any restitution requested should be temporary in nature and presented as being so (Cass. Soc. June 11th, 2025, n°23-21.819).

Disability and job adaptation, part 1: not respecting the Labor Doctor’s request with regards to adapting a disabled employee’s job can be considered as discrimination

On the second of April 2025, the Cour de cassation (highest French civil Court) ruled that the fact that a company refused to implement the changes requested by the Labor Doctor could be considered sufficient to demonstrate discrimination based on the employee’s state of health if the company could not provide any objective reason for such a refusal. 

Companies must comply with the Labor Doctor’s requests. Failure to do so may be considered to amount to a breach of their health and safety obligations. In principle, any subsequent dismissal would be considered unfair. If a company believes that it has grounds to refuse to comply with the Labor Doctor’s requests, namely because said requests are impossible to implement or place a disproportionate burden on the company, it must communicate this in writing to both the employee and the Labor Doctor. If the company does not respond or does not have good reasons not to comply, the dismissal may be deemed not only unfair, but discriminatory and, therefore, null and void.

In the case at hand, the Labor Doctor had recommended that the employee be provided with an ergonomic type of chair, the height of which could be adjusted, and which had lumbar support, armrests, and footrests. Given that the company had not provided the employee with this chair, it was deemed that she produced sufficient factual elements suggesting that there was a refusal to take appropriate and reasonable adaptation measures (Cass. Soc. April 2nd, 2025, n°24-11.728).

Disability and job adaptation, part 2: the absence or refusal to adapt the job posting is not always discriminatory 

Less than a month after the ruling mentioned in part 1, the very same Court ruled that the fact it was impossible, in practice and given the risks posed to the employee’s and her colleagues’ safety, to take appropriate and concrete reasonable adaptation measures amounts to an objective element, extraneous to any discrimination related to disability. 

In this case, the employer had been proactive with regards to the employee’s health, carrying out a study of the job posting, exchanging with the Labor Doctor, organizing meetings, and proposing 2 job openings. However, the employer had initially selected another potential adaptation, provided it were technically possible to implement it, namely, resorting to a scooter for internal comings and goings within the company. This potential adaptation was, in the end, not implemented. 

The question then became whether the refusal to resort to the scooter could be justified.
As was mentioned with regards to part 1, refusal can be justified considering the impossibility to implement a solution or where said solution would place a disproportionate burden on the company.  

In the case in question, the employer invoked difficulties in terms of the circulation plan on site, as well as risks for the safety of the employee and that of her colleagues.

The Court followed the employer’s line of reasoning, considering that such motives may adequately demonstrate that the non-implementation of an adaptation was justified by objective elements extraneous to any discrimination. The idea was that the risks induced by the adaptation (i.e., the scooter) with regards to the employee’s safety, and that of her colleagues, amounted to an impossibility, in practice, to implement it. 

It is incumbent upon the employer to prove such an impossibility (Cass. Soc. May 14th, 2025, n°24-12.225).

Transferring confidential company documents via a personal email account does not necessarily amount to gross misconduct 

On the 9th of April 2025, the Cour de cassation (highest French civil Court) upheld a Court of Appeal ruling pursuant to which the judges decided that the dismissal of an employee for gross misconduct was not justified despite her having transferred confidential documents from her professional to her personal email accounts.

The criteria for gross misconduct to be found to exist is the impossibility, given said misconduct, for the employment contract to carry on being performed. 

In this case, the judges ruled that despite the employee’s actions being in breach of her contractual confidentiality obligation, the company’s I.T. policy and its Code of Conduct, and regardless of that fact that she had sought to hide her actions by deleting any trace of the transfer, gross misconduct was not sufficiently demonstrated as there was no evidence that she had disclosed the documentation to a third party outside of the company. 

The fact that the employee had been with the company for a long time and had never received a disciplinary sanction before her dismissal, nor any reminder as to her obligations, also factored into this ruling. These elements are classically looked at by the Courts where dismissal for gross misconduct is concerned and should systematically be kept in mind by employers pondering going through with such a dismissal (Cass. Soc. April 9th, 2025, n°24-12.055). 

 
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