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Health pass: dismissal remains possible but unlikely

2021-07-27T20:43:33.600Z

The employer will have to justify a serious reason for dismissing an employee who does not respect the vaccination or health pass obligation.



The dismissal of an employee for lack of health pass remains possible, but within the framework of the Labor Code obliging the employer to justify a serious reason for doing so, which is not obvious and will be

"probably marginal"

, according to legal specialists.

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Read also: The health pass required for some workers worries the social partners

The health law text adopted by Parliament on Sunday no longer allows dismissal after two months of suspension without pay for people who do not respect the vaccination or health pass obligation. However,

"we must not let employees believe that there can be no dismissal,"

the Minister of Labor, Élisabeth Borne warned on Tuesday. It will remain possible but will fall under the scope of

"common law of the Labor Code"

.

“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 has removed this provision, ”

she explained.

For Deborah David, lawyer in social law, the device, disputed, is however

“much more balanced”

now than a

“kind of automatic dismissal after two months of absolute violence”

.

To dismiss, there must be

"a real and serious cause

".

"We call on the intelligence of companies and employees to find pragmatic solutions and when there is no solution, we apply the common law of dismissals in extreme cases,"

she said.

Read also: Health pass: instructions for use, people concerned, penalties ... What you need to know about the law definitively adopted

Among the possible reasons, according to this lawyer,

"an individual dismissal or for economic reasons"

.

She takes the example of a restaurateur who could not find an interim or a CDD to replace a suspended employee and whose only solution would be to hire a CDI.

But he will have, she stresses, to demonstrate that he has no other choice.

"Very marginal" layoffs

"We are within the framework of the classic employer-employee relationship: the law creates a new professional obligation but the company has the freedom to dismiss or not"

, nuance Benoît Serre, Deputy Vice-President of the National Association of Directors of human resources (ANDRH). If the employee

"has the means to comply but does not do so (by refusing the health pass) it is a real and serious cause (of dismissal)"

, he judges. But

"it will probably be very marginal because the employers will first try to convince"

and consider alternative solutions (offering another activity that does not require the device), he says. In addition,

"the health pass having a fairly near end of life"

, on November 15, the date on which Parliament must again examine the situation,

"we will expect companies not to lay off"

within these deadlines.

Me David also anticipates cases of layoffs probably

"very particular and very marginal"

.

"Prove a breach"

For Franck Héas, professor of labor law at the University of Nantes,

“this is a way of breaking off the initiative of the employer and he needs a reason that cannot be linked to the state. employee health ”

.

"It would be necessary to prove a breach of the obligations of the employment contract of the employee"

, notes this academic.

Because the control of health data poses a major problem insofar as the employer, supposed to control his employees, will have access to his medical data, which is prohibited by the Labor Code.

To read also: "Health pass: does the situation really justify a suspension of freedoms?", By Chantal Delsol

"The responsibility for the control lies well with the employer"

, which is the case for other vaccine obligations, notes Me David but

"it is not he who controls, it is the occupational medicine"

, a point which

"has been the subject of very little debate"

and should interest the Constitutional Council, which is due to vote on the text on August 5, she said.

If a sanction related to the medical status of an employee is already possible for

"invalidity"

or

"repeated and prolonged absence disrupting the proper functioning of the company"

, this remains

"very supervised and very rare"

, according to Mr. Serre. For him, the health pass is

"not a disguised vaccination obligation"

. On the other hand, that established for caregivers poses a problem:

"you cannot dismiss someone because he refuses to be vaccinated, it is an individual right"

, he says.

Source: lefigaro

All life articles on 2021-07-27

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