Illness: Prolonged or repeated absences

Prolonged or repeated absences due to illness

Can illness be used to justify dismissal?

An employee’s illness cannot, under any circumstances, justify dismissal.

If you fail to comply with this rule, dismissal on the grounds of your employee’s illness constitutes discrimination. The courts will rule that such a dismissal is invalid.

You may therefore be found liable on the grounds that the dismissal is void or constitutes discrimination. 

However, when one of your employees is ill, you may consider terminating their employment contract under strict conditions where their prolonged and/or repeated absences disrupt the running of your business and necessitate the replacement of the employee concerned.

Incapacity may also, in part, justify the dismissal of a sick employee.

Can a sick employee be dismissed? Conditions

You may consider dismissing one of your employees due to their prolonged and/or repeated absences on sick leave. To do so, however, very strict conditions must be met.

These absences must:

1. Disrupt the running of your business as a whole (excessive workload, dissatisfied customers, delays in tasks, etc.);

2. Make it necessary to permanently replace the sick employee. The employee recruited to replace the employee absent due to illness must be hired on a permanent contract for a period equivalent to that of the sick employee;

3. Not be the result of an accident at work, an occupational illness or a breach of your obligation to safeguard the health and safety of your employees.

These three conditions must all be met. If you do not meet any one of these conditions, it is not advisable to dismiss your employee who is absent due to illness.

If you are considering dismissal on the grounds of repeated or prolonged absences due to illness, you must follow certain procedures, namely

Follow these steps:

• Summon the employee to a preliminary interview;
• Hold the preliminary meeting;
• Notify the employee of the dismissal by registered post with acknowledgement of receipt.

Important: If the employee subject to dismissal is a protected employee (such as a staff representative), you must seek authorisation from the labour inspector.

What compensation is paid to a sick employee who has been made redundant?

Pay the employee:

• Compensation in lieu of notice;
• Severance pay;
• Compensation in lieu of paid annual leave if the employee has not used up all the paid annual leave to which they were entitled before the termination of their employment contract.

Important: Dismissing an employee on grounds of ill health may be considered outside the scope of these rules for disciplinary reasons where the employee has committed a fault, or where you are unable to continue the employment contract for reasons unrelated to the employee’s state of health (e.g. economic grounds).