Under certain conditions, frequent absenteeism due to health reasons may constitute a valid reason for dismissal. However, what happens when an employee's absenteeism is linked to depression caused by work stress? A recent Court of Appeal decision considered this issue.

As employees must work in order to receive their salary, their presence in the workplace is the norm, while absences are the exception.(1)

According to case law, absenteeism due to health reasons – characterised by long or numerous periods – can be a serious cause for dismissal when it undeniably affects the employer's operations. If an employer has good reason to believe that it can no longer rely on an employee due to these absences, dismissal may be justified.(2)

Facts

The case concerned an employee who worked in accounting and risk management and had been continuously absent due to illness for more than four months. The employee had provided 12 medical certificates and had been absent for a total of 134 days in 2016.

The court held that such a long absence by an employee in a position of responsibility had negatively affected the employer, which had had to find and provide for a replacement, and led to a disorganised workplace.

In this context, the court considered that such absenteeism "authorised, in principle, the employer to separate from [its] employee with notice, unless the illness of the employee, [which had caused the] frequent absences, was directly linked to the professional activity of the latter".

The employee stated that his absenteeism had been linked to depression which had been caused by:

his working conditions;

the stress to which he had been subjected by the employer; and

his workload.

According to case law, proof that an illness is directly linked to an employee's professional activity falls on the employee.(3)

In this case, in order to establish proof of the causal link between his illness and professional activity, the employee produced a medical certificate from his doctor which certified that his depression was associated with professional difficulties in the workplace.

However, the court held that such a medical certificate reported only the employee's subjective statements and did not help – in the absence of other objective elements – to establish a link between the employee's illness and his work.

Therefore, the dismissal was declared justified and the employee's arguments were rejected.

Previous case law

The court adopted a similar approach to a 2017 decision which concerned an employee who had justified her absenteeism due to depression following a change of assignment which she had considered unjustified.(4) In this case, the court had found that the employee had not presented evidence that her illness originated from her working conditions, even though she had paid for a medical certificate from her general practitioner three months after her dismissal and 10 months after the onset of her incapacity to work.

However, in another case which concerned the absenteeism of an employee who suffered from depression which was linked to psychological harassment, such a causal link between the illness and work was accepted by the court.(5) In this case, the employee had undergone several medical counter-examinations by doctors on the employer's request, one of which had highlighted employer-employee relationship problems. Notably, the employer had been aware of this medical opinion.

Comment

If an employee is dismissed because of frequent absenteeism for depression-related health reasons, they must prove the link between their depression and their working conditions.

Even if such evidence is difficult to provide (eg, where a medical certificate from the employee's doctor is insufficient according to the court), employees may still be able to prove such a link. Thus, in light of the Court of Appeal's recent assessment, dismissal based on frequent absenteeism could, in principle, be regarded as abusive.

In practice, it will remain difficult for employers to anticipate such situations, particularly when they are unaware at the time of dismissal of a possible link between an employee's depression and their professional activity. This is especially true if the reason for the employee's absence is not indicated on a medical certificate.

Endnotes

(1) Court of Appeal, 6 June 2019, CAL-2017-00041.

(2) Court of Appeal, 13 June 2019, 45151; Court of Appeal, 22 November 2018, 44891; Court of Appeal, 25 January 2018, 43612.

(3) Court of Appeal, 13 June 2019, 45151; Court of Appeal, 29 March 2018, 43515.

(4) Court of Appeal, 11 May 2017, 43240.

(5) Court of Appeal, 19 April 2018, 44623. In this particular case, the employee had been dismissed with immediate effect due to unjustified absences following various medical counter-examinations which had declared her fit for work.