THE QUESTION.
Since Wednesday, the health pass has been installed in the daily life of the French and with it many questions. Already required in places of leisure and culture of more than 50 people, it will be mandatory from the beginning of August in cafes, restaurants, trains, hospitals, clinics or retirement homes. It is therefore imperative for the customers of these establishments but also for their employees. According to the Ministry of Labor, 4.5 million workers will need to have a health pass (vaccination certificate, negative test of less than 48 hours or certificate of immunity for those who had Covid-19 less than six months) to have the right to exercise their activity.
Read also: Restaurants, shops: the sanitary pass attempt to aggregate places without restrictions on a website
What if an employee does not have a health pass in a sector that requires it? According to the bill examined today in Parliament, he will initially have "
the possibility of agreeing with (his) employer to take RTT or days off,"
said Minister of Labor Élisabeth Borne on BFM TV Tuesday evening, or "
to agree on another assignment, in a place"
where the employee will not be subject to the health pass. But other penalties may follow if the employee still refuses to present a pass. First, a "
suspension of the employment contract, obviously without remuneration",
explained Élisabeth Borne, then as a last resort, "
a dismissal for personal reasons".
But would such a dismissal really comply with labor law?
CHECKS.
The law on the extension of the health pass and the vaccination obligation has only a temporary status until December 31, even if it can be extended beyond this date. The fact of breaking a worker's employment contract therefore poses a problem of temporality. “
Dismissal is a definitive sanction, which will have a lasting impact on the lives of thousands of French people
,” points out lawyer Christophe Noël of the Paris and Annecy bars.
However, the law only holds until the end of the year. It is therefore totally disproportionate and shocking from the point of view of labor law ”.
This specialist in labor law considers that the suspension of the employment contract is a more "
logical" solution
because it is temporary.
Read also: Health pass: two days of "electric" debates in the Hemicycle
French law requires above all that the employer provide a real and serious cause to justify a personal dismissal.
"
A dismissal on the grounds that an employee has not presented a health pass does not exist in the law and has no meaning
," says Christophe Noël.
The government is therefore obliged to invent a completely new motif ”.
Another problem, the professions targeted by the health pass such as bars, restaurants or events often have recourse to contract workers on fixed-term contracts.
However, the law does not authorize the termination of a fixed-term contract before its term, except in the event of serious misconduct.
But here too, the absence of a sanitary pass cannot be considered as a serious fault.
Exceptional constraints
Inconsistencies which generate many legal uncertainties.
“
In addition to the practical vagueness, we are in a huge legal vagueness,”
deplores Christophe Noël.
"
We are really in measures and constraints of the order of the exceptional",
confirms the lawyer in labor law Deborah David.
The social law expert therefore considers it "
possible"
that the Constitutional Council rejects the bill, in particular on the question of the (dis) proportionality of the constraints due to the health pass.
If the legal basis of the health pass is called into question, the resulting dismissals may also be invalidated.
To read also: Health pass: "A profound and unprecedented questioning of our model of society"
"
This dismissal for non-presentation of the health pass will probably be the source of many disputes before the administrative court for civil servants and at the industrial tribunal for private sector employees
,
"
predicts Christophe Noël. The lawyer claims to be contacted by many nurses, firefighters or restaurateurs. Professions already tested by the health crisis, decided to contest any dismissal in connection with the health pass. According to him, the latter will be entitled to request the outright cancellation of the dismissal since the health pass can be considered as an obstacle to the freedom to work. In the event of cancellation, the employer will then be obliged to reinstate the employee in his position.
