When an employee is dismissed while on sick leave following a period of therapeutic part-time work, the employer must pay particular attention to the method used to calculate the severance pay. An error in the basis of calculation can easily lead to litigation.
In a ruling dated March 5, 2025 (Cass. soc., no. 23-20.172), the French Supreme Court clarifies the applicable terms and conditions. This decision is in line with established case law aimed at neutralizing the effects of health conditions on reference pay.
Neutralization of part-time work and sick leave
Article L. 1132-1 of the French Labor Code prohibits discrimination on the grounds of health. In the case of therapeutic part-time work, remuneration is by definition reduced. The Court ruled that this reduced remuneration could not be used to calculate severance pay.
➡ This principle also applies to the following sick leave: absence from work cannot justify a reduction in compensation.
🔎 To put it plainly: compensation must be calculated on the basis of the full-time salary received prior to the period of part-time work and sick leave.
What the Court said in the March 5, 2025 case
In this case, an employee dismissed for unfitness sought additional compensation, arguing that the calculation used was based on a salary reduced by the fact that she was working part-time.
The Court of Cassation agreed:
-
The reference salary must be determined in accordance with articles L. 1234-9 and R. 1234-4 of the French Labor Code,
-
The calculation must be based on remuneration for the 12 or 3 months preceding the therapeutic adjustment,
-
Part-time work and sick leave must be excluded from the calculation.
Points to watch for employers
- Always identify whether therapeutic part-time work has been set up prior to dismissal.
- Never use reduced remuneration as a basis for calculation, even if it covers the last 12 or 3 months.
- Secure your internal practices (bulletins, endorsements, HR history) to avoid any post-termination disputes.
Our advice
If there is any doubt about the applicable calculation basis, particularly in the case of workstation adjustments or sick leave, it is advisable to carry out an audit of the file before notifying the dismissal.
A discussion with your legal advisor will enable you to adjust the calculation basis and avoid any dispute over the amount paid to the employee.
Reference: Cass. soc., March 5, 2025, no. 23-20.172
Articles: L. 1132-1, L. 1234-9, R. 1234-4 of the Labor Code
–
Do you need support to secure your dismissal procedures?
Desrumaux Avocats assists companies in calculating compensation and managing high-stakes terminations.
