Cancellations are linked among the 15,000 suspended professionals.
In ten days, several administrative courts have invalidated the suspension of unvaccinated hospital workers, while the latter, like 2.7 million employees, have been subject to the vaccine obligation against Covid-19 since September 15 - October 16 for a complete vaccination schedule.
We take stock of these recent court decisions.
The location of the workplace
Two women working at the CHU of Saint-Etienne as well as an employee of the hospital center of Roanne, in the Loire, were "reinstated in their rights" after a judgment in their favor rendered on October 22, announced the joint management of the establishments. October 28.
The reason ?
These three employees work in hospital kitchens.
The Lyon administrative court thus considered that it was in the presence of elements "of such a nature as to give rise to serious doubt as to the legality of the decision in dispute".
The judgment mentions in particular "the location of the central kitchen of the CHU" in Saint-Etienne and specifies that the agent suspended from Roanne works "in an annex building located outside the hospital".
The court will issue its final decision in several weeks.
The common management of establishments has for its part indicated that it has appealed to the Supreme Court.
On sick leave before September 15
On Tuesday October 26, nine agents from Drôme Nord Hospitals, in Saint-Vallier and Romans-sur-Isère, also had their suspension canceled.
According to the Grenoble administrative court, they did not have to justify their vaccination while they were on sick leave when the law came into force.
The summary judge therefore ordered the hospital management to pay the staff the remuneration to which they are entitled within the framework of their sick leave.
Two days later, on October 28, the Rennes administrative court rendered a similar judgment: the summary judge invalidated the suspension of six unvaccinated nurses and nursing assistants from the Bretagne Sud hospital group.
All were on sick leave before September 15.
"Being on sick leave, they can not serve as a vector allowing the contamination of people hosted by the establishment," argued their lawyer, Damien Guillou, quoted by France 3 Bretagne.
“If a suspension can be regularly pronounced against an agent who benefits from sick leave, its entry into force does not begin effectively until the end of the sick leave.
"
Read also Vaccination obligation: the doctor from Oise who faced Covid-19 before everyone closes his office
Similar decisions were recently handed down by the administrative tribunals (TA) of Melun and Nancy.
From October 4, the TA of Cergy-Pontoise also considered that article 14 of the law of August 5, 2021 relating to compulsory vaccination from September 15 "could not apply to a public official on sick leave. to this date ".
Conversely, judges from Besançon and Bordeaux dismissed agents in the same situation.
Jurisdiction of the author of the suspension
In Corsica, it is a case of empowerment that led the Calvi hospital to withdraw the suspension of an unvaccinated nursing assistant on October 21.
The day before, during the hearing before the administrative court of Bastia, the applicant's lawyer, Sarah Puigrenier, had notably pointed out that the acting director of the hospital did not have the competence to order the suspension measure. , "Because the decree supposed to appoint her to this post had not been published", she explains to the Parisian.
Noting the withdrawal of the suspension, the summary judge pronounced a dismissal and ordered the hospital center to pay 1000 euros in compensation to the nursing assistant.
"Misuse" of the law?
Sarah Puigrenier specifies that the applicant from the Calvi hospital center had asked to take her days off rather than being suspended, in vain.
Same situation for another of his unvaccinated clients, this time in Bastia.
By favoring the suspension over leave, the establishments have made, according to Me Puigrenier, a "misuse" of article 14 of the law of August 5, 2021, according to which an "employee who is the subject of a prohibition to practice may use, with the agreement of his employer, conventional days of rest or days of paid vacation.
Otherwise, his employment contract is suspended ”.
The lawyer, who regrets "a lack of interpretation of this decision", seized the Council of State in order "to establish a case law on the subsidiary character, or not, of the suspension measure".
