Under the French Labour Code, the dismissal of an employee based on health is regarded as null and void as discriminatory, unless the employee is stated by the occupational health doctor to be unfit to perform his or her duties.
The application of this legal rule in a particular situation where the employee was harassed has been confirmed by the French Supreme Court in a decision of 13 February 2013. The Court ruled that the dismissal of an employee was null and void, despite her permanent incapacity, because it originated exclusively from her depression which in turn resulted from the acts of harassment she had been the victim of.
The employer, who knew about the harassment, could not therefore take the employee's unfitness to work as a ground for her dismissal.
However, this decision has to be read in conjunction with another one, on 13 March 2013, which concerns an exception to the provisions mentioned above. The French Supreme Court considers that the French Labour Code does not prevent an employer from dismissing an employee (who has not been declared by a doctor to be unfit) on the basis that the long-term absence or repeated sick leave disrupts the normal operation of the company's business and therefore requires a permanent replacement employee hired under an indefinite term employment contract.
However, in the later decision, the French Supreme Court considered that the employer cannot take the disruption to the normal operation of the company as a ground for dismissal where the absence of the employee is a consequence of the employer's failure to comply with its duties regarding the employees' health and safety. In the specific case, the employee claimed that she had been exposed to constant and prolonged stress due to work overload, likely to cause deterioration to her health. The Supreme Court overruled the Court of Appeal because the latter had not taken into account those elements when rejecting the employee's claim for damages.
This decision could be subject to further discussions as to the sanction which might be applicable in such case, as it is arguable that, since the dismissal of the employee was in fact based on her health, the judge should have ruled that her dismissal was null and void, as it did in its 13 February decision.
However, the employee did not claim that her dismissal was null and void but only claimed damages for unfair dismissal. As a result, the Supreme Court did not clearly state its position and limited itself to overruling the Court of Appeal's decision on the assessment of the facts.