An employee risks being dismissed if he refuses the health pass after August 30, said Tuesday morning the Minister of Labor, Elisabeth Borne, guest on the set of BFMTV, after the vote of Parliament, Sunday, on the contested extension of the device. "We must not let employees believe that there can be no dismissal," she insisted. An update made necessary after the vote in Parliament which raised the possibility of automatic dismissal for people who do not respect the vaccination obligation or health pass. From now on, "we are in the common law of the Labor Code", she recalled. Indeed, according to Eric Rocheblave, lawyer, specialist in labor law: “To prevent it,Parliament should have expressly introduced the impossibility of dismissing an employee who does not present a health pass. He did not do it. "
Also, the lawyer considers that "on the basis of the case law in the matter" two grounds can be invoked to dismiss an employee without health pass. First of all the incapacity of the employee. "If I had to advise an employer, I would tell him to send his employee to the occupational doctor," explains the lawyer. Only he can say whether or not an employee is fit to work. By noting that this employee does not have a health pass, a condition made compulsory by law for the position he occupies, he will be declared unfit. The employer will then have a serious and real reason for dismissing him. "
The second possibility concerns the employee's prolonged absence due to the suspension of his employment contract for failure to present the health pass.
"If this suspension lasts several weeks, it is likely to disorganize the company," continues Eric Rocheblave.
This reason may authorize the employer to dismiss him.
In all cases, employees will be entitled to claim compensation.
"This law is vague and creates a lot of uncertainties"
There remains a downside, how will the industrial tribunals judge these layoffs? "That's the whole question," admits the lawyer. Maybe they won't validate them. This is why this law is vague and creates a lot of uncertainties. On BFM, Élisabeth Borne, referred the responsibility for this vagueness to the Senate and its majority The Republicans. “We wanted in the law to regulate the way in which we could resort to dismissal, by saying in particular that this dismissal could not take place before two months and was accompanied by compensation for the employee; the Senate deleted this provision. "
In any case, a sufficiently imprecise law, which the Minister of Labor, herself, indicated to be ready to supplement, in particular if the sanitary pass were to settle permanently beyond November 15: "If the sanitary situation requires it and that these provisions must be extended, then we will have to come back to Parliament to properly regulate this dismissal procedure. "