Dismissal Meeting During a Work-Related Accident: What French Law Allows Employers to Do

You may summon and hold a pre-dismissal meeting (entretien préalable au licenciement) while your employee is on sick leave following a work-related accident. However, the dismissal itself may only be pronounced in two situations strictly framed by Article L.1226-9 of the French Labour Code: the employee’s gross misconduct (faute grave) unconnected to the accident, or an impossibility to maintain the contract for a reason unrelated 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, through securing this sensitive procedure.

What the Law Says: The Protected Suspension Period

During the suspension of the employment contract caused by a work-related accident or an occupational illness (accident du travail ou maladie professionnelle, AT/MP), your employee benefits from a specific protection set out in 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 grounds for termination that are permissible.

In practice, during the AT/MP leave, you may only terminate the contract if you can justify:

either gross misconduct (faute grave) committed by the employee, independent of the accident (for example, prior facts discovered during the leave, or breaches committed during the suspension);
or an impossibility to maintain the contract for a reason unrelated to the accident or illness (cessation of the company’s activity, elimination of the position under a duly 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 provided for in Article L.1232-2 of the French Labour Code. You must:

Send the summons by registered letter with acknowledgement of receipt, or hand-deliver it against a signed receipt, respecting a minimum period of 5 business days between the presentation of the letter and the date of the meeting.
State the purpose (contemplating a dismissal), the date, time and place, as well as the employee’s right to be assisted.
Hold the meeting, gathering the employee’s explanations before making any decision.

The fact that the employee is on sick leave does not suspend the course of the procedure. Your employee is not required to attend, and their absence does not prevent you from proceeding. However, take care not to schedule the meeting at a time incompatible with the employee’s authorised outings if you wish to avoid any dispute over the good-faith nature of the summons.

Major point of vigilance: never base the termination on considerations linked to the state of health, the accident or the consequences of the leave. A dismissal grounded, 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 grounds for nullity.

Gross Misconduct or Impossibility to Maintain the Contract: Securing the Ground

DAIRIA Law works upstream to characterise the ground and verify its soundness before the procedure is initiated.

Gross misconduct severable from the accident

The gross misconduct must make it impossible to keep the employee within the company. During an AT 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, carrying out a competing activity, disclosure of confidential information);
failure to comply with medical examinations or with obligations that continue during the suspension.

Caution: merely failing to submit sick-leave certificates or failing to attend a counter-examination is not, on its own, gross misconduct. Case law is demanding on the characterisation of the facts.

Impossibility to maintain the contract

This ground requires an objective reason, unrelated to the accident, that makes 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 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 may not 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, nullity being expressly listed among the exceptions in Article L.1235-3-1.

Where there is discrimination linked to the state of health, criminal liability and cumulative compensation may be added. Securing the ground upstream is therefore decisive for your employer account and your risk management.

Distinguishing Unfitness from Sick Leave

Do not confuse the suspension period (ongoing AT leave) with the outcome of the leave resulting in unfitness for work (inaptitude) assessed by the occupational physician. Once the employee is declared unfit to resume work following a work-related accident, the regime of Articles L.1226-10 et seq. applies: a reinforced redeployment obligation, consultation of the Social and Economic Committee (CSE), 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 resumption and the declaration of unfitness, the unfitness regime.

Frequently Asked Questions

Can an employee on AT 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 to maintain the contract).

Is an employee on AT leave required to attend the meeting?

No. The employee’s attendance is never mandatory, including outside any leave. Their absence does not prevent the procedure from continuing or the decision from being made. Nevertheless, take care to respect the 5-business-day period and to allow the employee the possibility of being assisted.

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

What ground for dismissal remains possible during AT leave?

Only two grounds: gross misconduct unconnected to the accident, and impossibility to maintain the contract for a reason unrelated 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 indemnities and to the risks in the event of discrimination.

How DAIRIA Law Can Assist You

Dismissing an employee during leave following a work-related accident exposes your company to a high risk of nullity and to a floor of twelve months’ salary in compensation. DAIRIA Law secures every step: characterisation and soundness of the derogatory ground, drafting of the summons and the dismissal letter, management of labour-court litigation, and arbitration between the suspension regime and the unfitness regime. We act both in preventive advisory work and in defence, to protect your employer account and make your HR procedures reliable. Contact us before initiating any procedure during AT/MP leave.