Dismissal during sick leave: a delicate legal framework
Dismissing an employee during a period of sick leave is a delicate issue that can give rise to numerous legal debates.
An employee on sick leave is normally protected. But there are exceptions to this rule. For example, it may happen that the employee engages in a competing activity while on sick leave. In such cases, dismissal may be legitimate.
This article explores the case law in this area and highlights the crucial role that a private investigator can play in such situations.
What does case law have to say about this?
In the Court of Cassation ruling of 28 January 2015 (CAS civ ch. soc. 28.01.2015, no. 13-18.354), an employer dismissed an employee during her sick leave for gross misconduct. The employee was working for a competing company during her sick leave, which constituted a breach of her duty of loyalty to her employer. The Court ruled that this act necessarily caused prejudice to the employer, making it impossible for her to remain with the company. This ruling emphasises that an employee who is ill must respect an obligation of loyalty. Any breach of this obligation may justify dismissal for gross misconduct.
The Crucial Role of the Private Investigator in Providing Evidence
In these situations, the private investigator plays a decisive role in gathering solid evidence of the employee’s competing activity. For example, in the case mentioned above, a private detective had observed the employee going to another hotel in Switzerland on a daily basis during her sick leave. He had also collected testimonies and advertisements showing that she managed this hotel. This evidence was crucial in convincing the courts that the employee’s sick leave was abusive, thereby justifying her dismissal for gross misconduct.
Agora Détectives, an agency specialising in this type of investigation, has all the necessary certifications, guaranteeing the quality and reliability of the evidence gathered.
Thanks to their expertise, employers can protect themselves against disloyal employees and defend their interests in court.
The manner of intervention must always be appropriate:
The method of obtaining evidence is crucial, as it must be gathered fairly in order to guarantee the privacy rights of the person under surveillance. The complexity of the intervention lies in the need to reconcile the right to defend oneself with the need to obtain evidence of a prejudice, while respecting the intimacy of private life. A detective’s report intended for presentation in court requires great care to avoid the inclusion of counter-productive information that could be excluded from the proceedings.
It is important to note that the report is not necessarily presented as direct evidence. It can also be used to justify the intervention of a judicial commissioner in order to materialise the facts uncovered by the detective. This allows the court commissioner to make a factual report that can be presented during the proceedings. This method can be less intrusive for the offending employee.
An intervention that is always measured and precise:
Dismissal during sick leave, although possible under certain conditions, remains a minefield in legal terms. The employer must be able to demonstrate the harm caused by the employee, which is not always easy to do without solid evidence. In this context, calling on the services of a professional can prove essential in establishing the employee’s fault and thus securing the dismissal process.
