Pre-Dismissal Hearing During a Work Accident: The Rules for Employers

You may summon and hold a pre-dismissal hearing (entretien préalable au licenciement) during your employee’s sick leave following a work accident. However, the dismissal itself may only be pronounced in two strictly regulated situations under Article L.1226-9 of the French Labour Code: gross misconduct (faute grave) by the employee unrelated to the accident, or an impossibility of maintaining the contract (impossibilité de maintenir le contrat) for a reason unconnected with the accident. Any termination made in breach of this rule is null and void (Article L.1226-13). This article guides you, as an employer, in securing this sensitive procedure.

What the Law Says: The Protected Suspension Period

During the suspension of the employment contract caused by a work accident or occupational illness, your employee benefits from specific protection provided under Articles L.1226-7 et seq. of the French Labour Code. This protection does not prevent the opening of a disciplinary procedure or a summons to a pre-dismissal hearing, but it severely restricts the admissible grounds for termination.

In practice, during work-accident/occupational-illness leave (AT/MP), you may only terminate the contract if you can justify:

either gross misconduct committed by the employee, unrelated to the accident (for example, prior facts discovered during the leave, or breaches committed during the suspension);
or an impossibility of maintaining the contract for a reason unconnected with the accident or illness (cessation of the company’s business, elimination of the position within the framework of a genuine economic ground, etc.).

Outside these two scenarios, the dismissal is exposed to nullity. Article L.1226-13 penalises any termination made in disregard of these provisions. The burden of proving the derogatory ground falls on you: the company must demonstrate that the grievance is real, serious and detachable from the accident.

Summoning and Holding the Pre-Dismissal Hearing: Points of Vigilance

The pre-dismissal hearing procedure remains identical to the ordinary procedure provided under Article L.1232-2 of the French Labour Code. You must:

Send the summons by registered letter with acknowledgement of receipt or by hand delivery against signed receipt, observing a minimum period of 5 working days between the presentation of the letter and the date of the hearing.
State the purpose (contemplating a dismissal), the date, time, place, and the employee’s right to be assisted.
Hold the hearing, gathering the employee’s explanations before any decision.

The fact that the employee is on sick leave does not suspend the progress of the procedure. Your employee is not required to attend, and their absence does not prevent you from proceeding. However, be careful not to schedule the hearing at a time incompatible with authorised outings if you wish to avoid any dispute over the good faith of the summons.

Major point of vigilance: never base the termination on considerations related to the employee’s health, the accident or the consequences of the leave. A dismissal grounded, even partially, on the employee’s state of health would be discriminatory within the meaning of Article L.1132-1 of the French Labour Code, resulting in a combination of nullities.

Gross Misconduct or Impossibility of Maintenance: Securing the Ground

DAIRIA Avocats acts upstream to characterise the ground and verify its robustness before the procedure is initiated.

Gross Misconduct Detachable from the Accident

The gross misconduct must make it impossible to retain the employee within the company. During work-accident leave, several situations may characterise it:

misconduct committed before the accident and discovered during the leave;
a breach of the duty of loyalty during the suspension (unfair competition, exercise of a competing activity, disclosure of confidential information);
failure to attend medical examinations or to comply with obligations remaining in force during the suspension.

Caution: the mere failure to submit sick-leave certificates or to attend a counter-examination is not, in itself, gross misconduct. Case law is demanding on the characterisation of the facts.

The Impossibility of Maintaining the Contract

This ground presupposes an objective reason, unconnected with the accident, making it impossible to continue the employment relationship. The most frequent case is a total cessation of activity or a reorganisation permanently eliminating the position. You must demonstrate that retaining the employee was concretely impossible, and not merely unfavourable to the company. Evidence of redeployment efforts, where required, must be documented.

The Consequences of an Irregular Dismissal

If the dismissal is pronounced in breach of Article L.1226-9, it is null and void. The financial consequences are heavy for your company:

the employee may request reinstatement;
failing that, they are entitled to compensation that cannot be less than twelve months’ salary (Article L.1226-15), in addition to termination indemnities (notice, paid leave, severance pay);
these amounts fall outside the “Macron” scale of Article L.1235-3, since nullity is expressly covered by the exceptions in Article L.1235-3-1.

In the event of discrimination linked to state of health, the criminal risk and a combination of compensations are added. Securing the ground upstream is therefore decisive for your employer’s account and your risk management.

Distinguishing Unfitness from Sick Leave

Do not confuse the suspension period (ongoing work-accident leave) with the outcome of the leave resulting in a finding of unfitness (inaptitude) by the occupational physician. Once the employee is declared unfit to return to work following a work accident, the regime of Articles L.1226-10 et seq. applies: reinforced redeployment obligation, consultation of the CSE (works council), and, where applicable, dismissal for unfitness with a doubling of the indemnity (Article L.1226-14). These are two distinct regimes: during the leave, the protective suspension regime; after the return and the declaration of unfitness, the unfitness regime.

Frequently Asked Questions

Can an employee on work-accident leave be summoned to a pre-dismissal hearing?

Yes. The sick leave does not suspend the employer’s right to initiate a disciplinary or dismissal procedure. You may summon and hold the pre-dismissal hearing under the conditions of Article L.1232-2. Only the pronouncement of the dismissal is limited to the grounds of Article L.1226-9 (gross misconduct or impossibility of maintenance).

Is the employee on work-accident leave obliged to attend the hearing?

No. The employee’s attendance is never mandatory, including outside any leave. Their absence does not prevent the continuation of the procedure or the decision. However, be sure to observe the 5-working-day period and to allow the employee the opportunity to be assisted.

Can an employee be dismissed for prolonged absences during a work accident?

No. The disruption caused by absence linked to the work accident cannot justify a dismissal during the suspension period. This ground would be connected to the consequences of the accident, and is therefore prohibited and null. The rule differs from that applicable to non-occupational sick leave.

What dismissal ground remains possible during work-accident leave?

Only two grounds: gross misconduct unrelated to the accident, and the impossibility of maintaining the contract for a reason unconnected with the accident (Article L.1226-9). The employer bears the burden of proving that the ground is real and detachable from the accident.

What penalty applies if the dismissal is wrongfully pronounced?

The dismissal is null and void (Article L.1226-13). The employee may request reinstatement or compensation of at least twelve months’ salary (Article L.1226-15), outside the Macron scale, without prejudice to termination indemnities and the risks in the event of discrimination.

Support from DAIRIA Avocats

Dismissing an employee during leave following a work accident exposes your company to a high risk of nullity and to a minimum compensation floor of twelve months’ salary. DAIRIA Avocats secures each stage: characterisation and robustness of the derogatory ground, drafting of the summons and the dismissal letter, management of labour-court (prud’homal) litigation and arbitration between the suspension regime and the unfitness regime. We act both in preventive advice and in defence to protect your employer’s account and make your HR procedures reliable. Contact us before initiating any procedure during work-accident/occupational-illness leave.