The Court of Cassation rules: an employee who works on his own during his sick leave cannot be compensated without proving damage.
Can an employee on sick leave claim damages if they continue to work during their sick leave? Until now, the answer seemed obvious: making a sick employee work exposes the employer. But the Court of Cassation has just strongly qualified this principle. Everything now depends on a simple question: who took the initiative?
It’s a fine line, but it can be expensive. During sick leave, the employment contract is suspended. The employee must rest, take care of himself, recover. The employer must not ask him to process files, respond to clients or continue to carry out his missions as if nothing had happened.
But in real business life, things are rarely so clear-cut. A message sent “just for info”, an email to which the employee responds spontaneously, a file that he decides to follow despite his stoppage, a quick connection to the professional computer: so many situations which blur the line between medical rest and business continuity.
By a judgment of July 1, 2026, the social chamber of the Court of Cassation provides an important clarification: the employee who works on his own initiative during his sick leave cannot automatically obtain damages. He must prove that he suffered harm.
Making a sick employee work remains a fault of the employer
The starting principle does not change. An employer cannot ask an employee placed on sick leave to continue working.
If he does so, he is failing in his security obligation. This obligation requires the company to protect the physical and mental health of its employees. It doesn’t stop at the sick leave door. On the contrary, when the doctor prescribes a break, the employer must take care not to neutralize this rest period.
The Court of Cassation had already recalled, notably in a decision of November 19, 2025, that making an employee work while on leave constitutes a breach of the safety obligation.
In this scenario, the employee does not necessarily have to demonstrate his damage in detail. The employer’s breach may be sufficient to give rise to the right to compensation.
Concretely, if a manager asks a sick employee to manage a file, attend a meeting, respond to customers or produce work during their sick leave, the company takes a real industrial tribunal risk.
But if the employee works alone, it is no longer automatic
This is where the decision of July 1, 2026 changes the reading of the subject.
In the case decided, an employee placed on sick leave continued to work. She then accused her employer of a breach of its safety obligation and claimed damages.
Problem: the judges found that the employee had worked on her own initiative. There was no evidence to establish that the employer had requested, encouraged or forced her to continue her activity. Nor did it demonstrate the existence of specific harm.
Result: his request is rejected.
The message is clear: the mere fact of having worked during sick leave is not always enough to automatically incur liability on the part of the employer. If the initiative comes exclusively from the employee, he must prove the reality and extent of the damage he is claiming.
In other words, responding spontaneously to your emails, consulting your files or moving forward on a mission during your shutdown does not, in itself, give you an automatic right to compensation.
The real question becomes: who induced labor?
This decision imposes a very concrete distinction.
First situation: the employer solicits the employee. He writes to him, calls him, asks him to do a task, sets a deadline or suggests that his participation is expected. In this case, the risk is on the company’s side.
Second situation: the employee acts alone. He logs in, checks his emails, discusses a subject or responds to a client without request from the employer. In this case, it is no longer enough to assert that the sick leave has been disrupted. Compensable damage must be demonstrated.
This distinction is essential for HR departments, managers and employees. It shifts the debate from the simple observation — “the employee worked during his sick leave” — to the origin of this work: request from the employer or personal initiative?
Some exchanges remain possible, but be careful of abuse
The decision does not mean that no contact is possible with an employee on sick leave.
Certain very occasional exchanges may be permitted when they are strictly necessary for the continuity of the activity. For example: recover a password, obtain essential information, find a customer’s contact details or locate an urgent document.
But these exchanges must remain exceptional, limited and proportionate. They must never turn into a real pursuit of professional activity.
The red line is crossed when the company regularly solicits the employee, asks him to produce work or maintains a form of implicit pressure during his stoppage.
A decision in line with the right to disconnect
This solution is part of a broader trend in recent case law.
In March 2026, the Court of Cassation had already adopted a comparable logic in matters of right to disconnect. When an employee spontaneously connects to their professional tools, without request from the employer, compensation is not automatic. He must demonstrate harm.
The reasoning is therefore coherent: when the employer imposes or causes the connection, its liability can be engaged. When the employee acts alone, he must prove what he actually suffered.
This logic could become more and more important with the teleworkinstant messaging, professional smartphones and permanently accessible digital tools.
What employers should do now
For companies, this decision should especially not be interpreted as authorization to ask employees to take sick leave.
On the contrary, it recalls the need to put in place clear rules.
Managers must be made aware: an employee on sick leave must not be contacted to work. Professional access may be temporarily restricted. Automatic absence messages must be activated. Files must be reassigned. Urgent requests must go through another employee.
The company has an interest in retaining proof of this organization: internal instructions, handover messages, HR procedures, reminders to teams. In the event of a dispute, these elements can help demonstrate that the employer did not ask the employee to work.
What employees should remember
For employees, the decision is just as important.
When an employer asks to work during sick leave, proof must be kept: emails, SMSTeams or WhatsApp messages, calls, instructions, reminders, requests for files, invitations to meetings.
On the other hand, if the employee works on his own, without a request from the company, he cannot simply say that he worked during his time off. He will have to demonstrate harm: worsening of his state of health, particular fatigue, anxiety, disorganization of his rest, pressure suffered or medical consequences.
Without proof, the claim for compensation risks being rejected.
A clarification that protects the employer… without exonerating him
The ruling of July 1, 2026 does not remove the protection of sick employees. It simply avoids excessive automaticity when work during the shutdown does not result from a request from the employer.
The solution is therefore balanced: the employer remains responsible if he solicits the employee, but he does not automatically respond to the latter’s personal initiatives.
For companies, the message is simple: do not ask an employee to take sick leave, unless strictly exceptional. For employees, it is just as much: if you ask for compensation, you will have to prove who started the work and what damage you actually suffered.
The Court of Cassation has just laid down a very practical rule: during sick leave, working is not enough to obtain compensation. We still need to know why, at whose request, and with what consequences.
Sources
- Court of Cassation, social chamber, July 1, 2026, no. 25-15.732, published in the Bulletin:
- https://www.legifrance.gouv.fr/juri/id/JURITEXT000054392403
- Court of Cassation, social chamber, November 19, 2025, no. 24-17.823:
- https://www.courdecassation.fr/decision/691dc75902bad2f30afd7f11
- Court of Cassation, social chamber, March 25, 2026, no. 24-21.098:
- https://www.legifrance.gouv.fr/juri/id/JURITEXT000053765434
- Service-Public Entreprendre, “Does an employer violate the right to disconnect of an employee who connects spontaneously?” :
- https://entreprises.service-public.gouv.fr/actualites/A18871
- Le Bouard Avocats, “Can an employee work on sick leave?” :
- https://www.lebouard-avocats.fr/post/un-salari%C3%A9-peut-il-travailler-en-arr%C3%AAt-de-travail
