Pre-Dismissal Meeting During Work Accident Leave: The Rules for Employers

You may summon and hold a pre-dismissal meeting (entretien préalable au licenciement) during an employee’s sick leave following a work accident. However, the dismissal itself can only be pronounced in two situations strictly governed by 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 employment contract for a reason unconnected to the accident. Any termination pronounced 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 (accident du travail) or an occupational illness (maladie professionnelle), your employee benefits from specific protection provided under Articles L.1226-7 et seq. of the French Labour Code. This protection does not prevent you from opening disciplinary proceedings or from summoning the employee to a pre-dismissal meeting, but it severely restricts the admissible grounds for termination.

In practical terms, during work-accident or occupational-illness leave, 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 to the accident or illness (cessation of the company’s activity, elimination of the position within the framework of a clearly established economic ground, etc.).

Outside these two scenarios, the dismissal is exposed to nullity. Article L.1226-13 sanctions any termination pronounced in disregard of these provisions. The burden of proving the derogatory ground lies with you: the company must demonstrate that the grievance is genuine, serious and severable from the accident.

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

The pre-dismissal meeting procedure remains identical to the ordinary one set out in 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, respecting a minimum period of 5 working days between the presentation of the letter and the date of the meeting.
State the purpose (contemplating a dismissal), the date, time, place, as well as the employee’s right to be assisted.
Hold the meeting, gathering the employee’s explanations before any decision.

The fact that the employee is on sick leave does not suspend the conduct of the procedure. Your employee is not required to attend, and their absence does not prevent you from proceeding. Nevertheless, take care not to schedule the meeting 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 linked to the employee’s state of health, the accident or the consequences of the leave. A dismissal founded, even partially, on the state of health would be discriminatory within the meaning of Article L.1132-1 of the French Labour Code, resulting in cumulative nullities.

Gross Misconduct or Impossibility of Maintaining the Contract: Securing the Ground

DAIRIA Law firm intervenes upstream to characterise the ground and verify its solidity before proceedings are initiated.

Gross Misconduct Severable from the Accident

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

wrongful facts 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 that continue during the suspension.

Caution: the mere failure to send in 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 to the accident, making it impossible to continue the employment relationship. The most frequent case is the total cessation of activity or a reorganisation permanently eliminating the position. You must demonstrate that keeping the employee was concretely impossible, and not merely unfavourable to the company. Evidence of redeployment (reclassement) 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 severe 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 payments (notice, paid leave, severance indemnity);
these amounts fall outside the “Macron” scale of Article L.1235-3, since nullity is expressly listed among the exceptions of Article L.1235-3-1.

Where there is discrimination linked to the state of health, criminal risk and a cumulation of compensation are added. Securing the ground upstream is therefore decisive for your employer’s account and your risk management.

Distinguishing Unfitness for Work 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 for work (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: a 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 applies; after the return to work and the declaration of unfitness, the unfitness regime applies.

Frequently Asked Questions

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

Yes. Sick leave does not suspend the employer’s right to initiate disciplinary or dismissal proceedings. You may summon and hold the pre-dismissal meeting 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 maintaining the contract).

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

No. The employee’s presence is never mandatory, even outside any leave. Their absence does not prevent the procedure from continuing or the decision from being taken. Nevertheless, be sure to respect the 5-working-day period and to allow the employee the opportunity to be assisted.

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

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

Which dismissal ground remains available during work-accident leave?

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

What is the sanction if the dismissal is wrongly 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 payments and the risks in the event of discrimination.

Support from DAIRIA Law Firm

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 Law firm secures every stage: characterisation and solidity of the derogatory ground, drafting of the summons and the dismissal letter, management of labour court (prud’hommes) 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 or occupational-illness leave.