Sick leave : disciplinary immunity or just a pause ?

February 5th, 2026

The suspension of an employment contract due to a workplace accident protects the employee, as they may only be dismissed for gross misconduct or “impossibility of maintaining the employment”.

Until now, established case law only allowed an employee to be dismissed for gross misconduct for acts committed during the suspension of the contract if those acts constituted a breach of the duty of loyalty.

In a published decision* of January 21, 2026, the Court of Cassation provides an important clarification by distinguishing between misconduct committed before the sick leave and that committed during it: an employee on leave due to a workplace accident may be dismissed for gross misconduct based on breaches committed before the suspension of the contract, without the need to establish a breach of the duty of loyalty.

In this case, an employee on leave for an occupational illness was dismissed for having, over several years, carried out a parallel activity in breach of an exclusivity clause, used the company’s IT tools, and transmitted internal documents. She argued that only a breach of the duty of loyalty during the sick leave could justify termination, relying on existing case law. According to her, dismissal for gross misconduct during the suspension could not be based on facts that occurred before the suspension of the contract due to illness.

The Court rejected this restrictive interpretation of Article L. 1226-9 of the French Labour Code: although termination is strictly regulated during the suspension, the employer may rely on prior misconduct. This solution is consistent with an unpublished decision of September 6, 2023 (No. 22-17.964), which had already upheld the dismissal of an employee whose contract was suspended based on earlier conduct that harmed the company’s reputation. The suspension is therefore not a form of disciplinary amnesty.

The decision is also noteworthy for another reason. Following recent rulings discussed in our January 22, 2026 newsletter on employees’ freedom of expression—where the notion of “abuse” is gradually being replaced by a true proportionality review—the Court confirms a heightened level of scrutiny in disciplinary matters. In this case, it overturned the appellate decision for failing to take into account the consequences of management behavior deemed aggressive and potentially constituting moral harassment, even though the professional complaints against the employee were otherwise well established.

Our opinion : Serious misconduct may be legally established, but it will not be sufficient if the managerial environment weakens the decision. The judge’s review becomes a balancing assessment.

*Cass. soc., 26 janv. 2026, n° 24-22.852

=> For any advice on employment law or social security law, please contact Guillaume Roland, partner: g.roland@herald-avocats.com