Since a 2016 decision, where the employer fails to prove the disruption to the company or the need to permanently replace the absent employee, and absent any factual elements from which discrimination can be presumed, the dismissal is without genuine and serious cause but not void (Cass. soc., 27 Jan. 2016, no. 14-10.084, F-PB).
Some lower courts have nevertheless persisted in inferring nullity from the mere absence of proof of the disruption and/or of the replacement. Nullity was thus recently upheld in cases decided by the Poitiers Court of Appeal (CA Poitiers, ch. soc., 23 Apr. 2026, no. 22/02634) and by the Aix-en-Provence Court of Appeal (CA Aix-en-Provence, ch. 4-2, 10 July 2026, no. 22/10914).
The Cour de cassation had, however, already had the opportunity, earlier in 2026, in a decision with fewer publicity, to overturn this reasoning, holding that this absence of proof did not, in itself, constitute a material element from which discrimination can be presumed (Cass. soc., 18 Feb. 2026, no. 24-21.137, F-D).
The decision of 9 September 2026 (Cass. soc., 9 Sept. 2026, no. 25-14.356, F-B) reaffirms this solution, this time with greater visibility, which should put an end to these divergences.
Of course, this solution does not entirely rule out nullity. Any dismissed employee may put forward factual elements suggesting discrimination, and it will then be for the employer to prove that its decision is justified by objective factors unrelated to any discrimination.
This decision is an opportunity to recall, in light of the requirements of case law, how to build a case that is as robust as possible, in order to secure the validity of a dismissal based on this ground.
Preparing the dismissal file, step by step
1. Preliminary checks
- Timing of dismissal. The dismissal must take place while the employment contract is suspended, and therefore during the sick leave. It is unjustified if the employee has returned to work, has been declared fit, or is due back on a known and close date.
- Origin of the illness or accident that caused the leave. In the case of a work-related accident or occupational disease, disruption to the company's operations is not an admissible ground for dismissal.
- Absence not attributable to the employer. The employer cannot rely on disruption to the company where the employee's absence results from the employer’s conduct, for example in cases of moral harassment, work overload or failure to comply with the work doctor's recommendations. The dismissal is then void if the absence results from moral harassment (Cass. soc., 30 Jan. 2019, no. 17-31.473, F-PB).
- Collective agreement and guarantee of employment. Some collective bargaining agreements prohibit dismissing a sick employee for a specific period because of their absences. These so-called guarantee of employment provisions are common. It is therefore necessary to check whether the applicable collective agreement contains such type of provisions before considering any dismissal procedure on account of employee absences disorganising the company.
2. Establishing disruption at the level of the company as a whole, making the permanent replacement of the employee imperative
The disruption resulting from the employee's absence must affect the company as a whole. Disruption to a single establishment or department is not sufficient, unless that department is essential to the company's operations (Cass. soc., 27 Jan. 2016, no. 13-27.979, F-D; Cass. soc., 23 May 2017, no. 14-11.929, F-D).
To assess this disruption and the need to replace the employee, the judges take into account the size of the company (Cass. soc., 30 Apr. 2003, no. 01-42.073, F-D) and the employee's qualifications. A technical post requiring specific training makes temporary replacement more difficult (Cass. soc., 9 Oct. 2013, no. 12-15.975), whereas a low-skilled employee is more easily replaced (Cass. soc., 4 Oct. 2000, no. 98-42.501). The employer must also show that it cannot cover the absence on a temporary basis. If the tasks can be shared among colleagues or assigned to an employee on a fixed-term contract, the need for permanent replacement is not established (Cass. soc., 30 Apr. 2014, no. 13-11.533).
The length, frequency and unpredictability of the absences are also relevant. No threshold is set, and an absence of more than five months has, for example, been held sufficient (Cass. soc., 7 May 2002, no. 00-42.328).
The company's difficulties must, moreover, be attributable solely to the employee's absence. For an employee in a sales role, the employer must demonstrate the correlation between the decline in turnover or sales in the employee's sector and the employee's absence (Cass. soc., 9 June 2010, no. 09-40.203, F-D).
3. Planning for the permanent replacement of the absent employee
- Type of contract justifying permanent replacement. The replacement must be made by hiring on a permanent contract, with equivalent working hours (Cass. soc., 6 Feb. 2008, no. 06-44.389), within the company itself and not in another company of the group (Cass. soc., 25 Jan. 2012, no. 10-26.502). A fixed-term contract, a temporary agency contract, an internship agreement or a service agreement are not sufficient. A cascade replacement (an internal replacement) is accepted if a permanent contract is ultimately recruited for the vacated position.
- Time limit for the replacement. This is assessed as at the date of the dismissal and not at the end of the notice period (Cass. soc., 28 Oct. 2009, no. 08-44.241). A six-month gap between the dismissal and the replacement was considered reasonable for a director, with steps taken immediately to replace her (Cass. soc., 24 Mar. 2021, no. 19-13.188). A seven-month gap was considered excessive for a workshop manager (Cass. soc., 12 Oct. 2011, no. 10-15.101).
- Fixed-term contract converted into a permanent contract. It is possible to permanently replace the absent employee with a fixed-term contract converted into a permanent contract where the need is genuine. This will not be regarded as the case if the employer simply wishes to put an end to a succession of precarious contracts, or if the switch to a permanent contract results from the own request of the replacing employee (Cass. soc., 26 Sept. 2007, no. 06-43.847; Cass. soc., 30 Nov. 2010, no. 09-42.530).
In case of doubt
Where it appears that all of these conditions cannot be met, and that a dismissal on this ground would be too risky, it is always possible for the employer to propose a mutually agreed termination to the employee. This may be formalised during sick leave (including in cases of work-related accident or work-related disease), save in cases of fraud or defective consent (Cass. soc., 30 Sept. 2014, no. 13-16.297).
On this point, it should be noted that the Cour de cassation has held that the proposal, even if repeated, of an individual mutually agreed termination to an employee on sick leave did not, in itself, constitute an element from which discrimination based on state of health can be presumed. Discrimination cannot therefore be inferred when such proposal is followed by a dismissal for prolonged absence disrupting the company's operations (Cass. soc., 17 June 2026, no. 25-12.181, F-B).
