French Labour Law

Dismissal Pre-Termination Meeting During a Work Accident: What Employers Can Do in France

DAIRIA Law · Published · 7 min

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

You may summon and hold a pre-dismissal meeting (entretien préalable au licenciement, the mandatory preliminary meeting before dismissal) during an employee’s sick leave following a work accident. However, the dismissal itself may only be pronounced in two strictly regulated cases under Article L.1226-9 of the French Labour Code: serious misconduct (faute grave) by the employee unconnected to the accident, or impossibility of maintaining 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, 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 (accident du travail / maladie professionnelle, referred to as AT/MP), your employee benefits from specific protection provided for by Articles L.1226-7 et seq. of the French Labour Code. This protection does not prevent the opening of disciplinary proceedings or the summons to a preliminary meeting, but it sharply limits the admissible grounds for termination.

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

  • either serious misconduct 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 of maintaining the contract for a reason unrelated to the accident or illness (cessation of the company’s business, 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 penalises any termination pronounced in disregard of these provisions. The burden of proving the derogatory ground rests on you: the company must demonstrate that the grievance is genuine, serious and severable from the accident.

Summoning and Holding the Preliminary Meeting: Points of Vigilance

The preliminary meeting procedure remains identical to the ordinary one, provided for by Article L.1232-2 of the French Labour Code. You must:

  1. 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.
  2. State the purpose (a dismissal being contemplated), the date, time, place, as well as the employee’s right to be assisted.
  3. Hold the meeting, gathering the employee’s explanations before any decision.

The fact that the employee is on sick leave does not suspend the running 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 authorised outings if you wish to avoid any debate 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 based, 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 a combination of grounds for nullity.

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

The firm DAIRIA Avocats intervenes upstream to characterise the ground and verify its solidity before the procedure is launched.

Serious Misconduct Severable from the Accident

Serious misconduct must make it impossible to keep the employee in the company. During 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, engaging in a competing activity, disclosure of confidential information);
  • failure to attend medical examinations or to comply with obligations that subsist during the suspension.

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

Impossibility of Maintaining the Contract

This ground requires an objective reason, unrelated to the accident, making it impossible to continue the working relationship. The most frequent case is the total cessation of business 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 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 pay, paid leave, dismissal indemnity);
  • these amounts fall outside the “Macron” scale of Article L.1235-3, nullity being expressly covered by the exceptions in Article L.1235-3-1.

In the event of 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 account and your risk management.

Distinguishing Unfitness from Sick Leave

Do not confuse the suspension period (AT leave in progress) with the outcome of the leave resulting in unfitness (inaptitude) established 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 (Social and Economic Committee), 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 to work and the declaration of unfitness, the unfitness regime.

Frequently Asked Questions

Can an employee on AT leave be summoned to a preliminary meeting?

Yes. Sick leave does not suspend the employer’s right to initiate disciplinary or dismissal proceedings. You may summon and hold the preliminary 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 (serious misconduct or impossibility of maintaining the contract).

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

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

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

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

What grounds for dismissal remain possible during AT leave?

Only two grounds: serious misconduct unconnected to the accident, and impossibility of maintaining 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 penalty 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 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 award of twelve months’ salary. The firm DAIRIA Avocats secures every step: characterisation and solidity 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 advice and in defence to protect your employer account and make your HR procedures reliable. Contact us before initiating any procedure during AT/MP leave.

← All insights