By the Law of 23 July 2015(1) coming into force on 1 January 2016, the procedure on internal and external redeployment has been changed. More information on the content of this Law will be available in an article published on our website.
By the Law of 7 August 2015(2) entered into force on 1 September 2015, the duties and powers of the Social Security Medical Inspectorate have been redefined and the provisions on protection against dismissal for a sick employee, i.e. Articles L. 121-6 (3) and (5) of the Labour Code have been amended.
Indeed, the Law of 7 August 2015 amends, in particular, the provisions relating to:
- the length of the period of protection against dismissal for a sick employee, and
- the payment by the employer to the employee of the salary and other benefits during the period of sickness,
pending the possibility for the National Health Fund (Caisse Nationale de Santé) (the “CNS”) to issue a refusal decision and for the employee to appeal against such a decision.
Under the terms of Article L. 121-6 (3), first sub-paragraph, of the Labour Code (which remains unchanged) an employer who is informed or in possession of a medical certificate is not authorised, even on serious grounds, to notify an employee of the termination of his employment contract or of the invitation to the prior interview, if any, for a period of up to 26 weeks from the day the incapacity for work occurred.
During this period of incapacity for work, the employer must pay the employee the full amount of his salary and other benefits arising under his employment contract until the end of the calendar month in which the 77th day of incapacity for work falls, over a reference period of twelve successive calendar months.
Pursuant to the Law of 7 August 2015, a second sub-paragraph has now been added to Article L. 121-6 (3) of the Labour Code which states that the entitlement to full salary and other benefits arising under the employment contract shall cease for the employee in the event of a decision of refusal issued by the CNS. Under the terms of the Law of 7 August 2015, the refusal decision by the CNS shall be imposed on the employer such that he will therefore have to stop paying the sick employee.
However, from the notification of the refusal decision by the CNS to the employee, the latter will have a period of 40 days to lodge an appeal against this decision.
If the employee does not lodge an appeal within this period of 40 days against the refusal decision by the CNS, the period of protection of the employee will expire at the end of the 40-day appeal period in accordance with sub-paragraph 2 of Article L. 121-6 (3) of the Labour Code. It can be deduced from this provision that the employer may dismiss the employee at the end of the 40-day appeal period without having to wait until the end of the 26 weeks provided for in sub-paragraph 1 of Article L. 121-6 (3) of the Labour Code.
If, on the contrary, the employee lodges an appeal against the refusal decision, the CNS shall inform the employer and the period of restriction for the notification of the termination of the employment contract or the invitation to the prior interview shall remain.
The entitlement to full salary and other benefits arising under the employment contract shall be restored in the event of revision of the refusal decision by the CNS. The employer shall be so informed by the CNS and will have to make retroactive payments.
In accordance with Article L. 121-6 (5) of the Labour Code, as amended, the employer shall regain his right to terminate the employment contract of the employee after expiry of the periods referred to in sub-paragraphs 1 and 2 of Article L. 121-6 (3) of the Labour Code.
Unfortunately, the additions made to Article L. 121-6 (3) and (5) of the Labour Code pursuant to the Law of 7 August 2015 bring with them many grey areas, particularly with regard to the maximum period of restriction on the notification of termination of the employment contract or the invitation to the prior interview in the event of an appeal lodged by the employee against the refusal decision by the CNS. Indeed, the Law of 7 August 2015 does not specify how long the employee will ultimately be protected against dismissal in the event of an appeal. More importantly, the provisions of Article L. 121-6 (3) and (5) are clearly self-contradictory.
There will have to be clarification on this subject, either on the part of the legislator or by the courts in case of a litigation being brought forward by the parties involved.
(1) Law of 23 July 2015 amending the Labour Code and the Social Security Code with regard to internal and external redeployment measures.
(2) Law of 7 August 2015 amending the duties and powers of the Social Security Medical Inspectorate.