Case Law Alert: Alleged Discrimination when a Sick Employee is Unfairly Dismissed

An employee had been on sick leave due to an occupational illness since 8 August 2013. He was taken off sick again for a relapse on 16 December 2016, and was finally dismissed on economic grounds on 21 February 2017. He then brought an action before the Labour Court, claiming that the ‘disguised’ redundancy should be annulled on the grounds of discrimination based on his health condition. In his view, there were several factors that suggested the existence of such discrimination: no office was available when he returned to work, he was the only manager to have been made redundant as part of the employer’s restructuring, and there was no economic reason for his dismissal in 2017. For the lower courts, the economic context that led to the reorganisation during the period of sick leave did amount to objective justification. Consequently, the dismissal was not discriminatory, although it lacked real and serious grounds insofar as the accounting figures did not make it possible to establish the existence of economic difficulties at the time of dismissal. The Cour de cassation overturned the appeal decision, ruling that an employer intending to make an employee redundant for economic reasons when returning from long-term sick leave must ensure that the economic reason put forward is genuine and serious. If not, the redundancy may be deemed discriminatory and not just without a real and serious cause. (Cass. Soc., 10 July 2024, no. 22-16.805)