The Court of Cassation judges that a conventional termination proposed during sick leave is not, in itself, discriminatory. The context, however, remains decisive.
The Court of Cassation has just clarified an important rule for both employees and employers: proposing a conventional termination during sick leave is not sufficient, in itself, to characterize discrimination based on state of health.
In a judgment rendered on June 17, 2026, the social chamber of the Court of Cassation recalls that a conventional termination can validly be considered even though the employment contract is suspended due to sick leave. This possibility, however, remains limited: the agreement must not be tainted by fraud or a defect in consent.
The decision is important because it sets a limit to the use of the proposition of conventional termination as an indicator of discrimination.
A conventional termination proposed during sick leave
In this case, an employee had been placed in work stoppage repeatedly. His employer had offered him a conventional termination, then renewed this proposal while he was on sick leave.
The employee refused.
A few months later, he was dismissed due to his prolonged absence, the employer believing that this situation disrupted the functioning of the service and the company.
The employee then contacted the industrial tribunal. He requested in particular that his dismissal be declared invalid, on the grounds that he was the victim of discrimination linked to his state of health.
The court of appeal ruled in favor of the employee
The Lyon Court of Appeal upheld the existence of discrimination.
According to her, the fact that the employer renewed its proposal for a conventional termination during sick leave, before proceeding with dismissal for prolonged absence, constituted an element allowing discrimination to be presumed.
In matters of discrimination, the employee does not have to immediately provide complete proof. It must present factual elements suggesting the existence of discrimination.
It is then up to the employer to demonstrate that its decisions are based on objective reasons, unrelated to any discriminatory motive.
In this case, the appeal judges considered that the employer did not provide sufficient evidence to explain the proposed termination and the subsequent dismissal.
The dismissal was therefore declared void.
The Court of Cassation rejects this reasoning
The Court of Cassation, however, censures this analysis.
It first recalls that a conventional termination can be concluded during a period of suspension of the employment contract linked to an illness.
In other words, sick leave does not prohibit, in principle, the employer and the employee from discussing an amicable separation.
The High Court deduces that the simple proposal of a conventional termination during the work stoppage does not constitute, in itself, an element suggesting discrimination based on the state of health.
It is on this precise point that the judgment of the Court of Appeal is overturned.
What this decision changes for employees
This decision does not mean that an employee on sick leave can never claim discrimination.
It only means that the proposal for a conventional termination is not sufficient, in isolation, to give rise to the presumption of discrimination.
To obtain the nullity of a dismissal, the employee must present other contextual elements.
He may in particular invoke:
- repeated pressure to accept the breakup;
- comments directly related to his state of health;
- threats of dismissal in the event of refusal;
- a sidelining;
- differences in treatment;
- a particularly revealing chronology;
- or the absence of objective justification for the dismissal.
The judges will then have to examine all of these elements, and not limit themselves to the sole fact that a conventional termination was proposed during the sick leave.
However, the employer does not have carte blanche
For companies, the ruling constitutes a useful clarification, but not a general authorization to push a sick employee out.
Conventional termination is based on free and informed consent.
It can therefore be canceled if the employee demonstrates that he was subjected to pressure, threats, coercion or a maneuver intended to obtain his agreement.
The situation can be particularly sensitive when the employee is weakened by his state of health, when he has been off work for a long time or when he fears losing his job.
The employer must therefore be able to prove that the proposal was formulated fairly, without pressure and without a discriminatory link to the employee’s illness.
Dismissal for prolonged absence remains possible, but under conditions
The decision also concerns a dismissal pronounced due to a prolonged absence.
In principle, an employee cannot be dismissed due to their state of health.
A dismissal based directly on illness would be discriminatory and therefore void.
On the other hand, case law accepts that an employee can be dismissed when his prolonged absence or his repeated absences objectively disrupt the functioning of the company and make his permanent replacement necessary.
The employer must be able to concretely demonstrate these two conditions.
It is therefore not enough to invoke general discomfort or vague disorganization.
The reality of the disruptions and the need for definitive replacement must be established.
A decision favorable to employers, but limited in scope
The judgment of June 17, 2026 protects employers against an automatic presumption of discrimination.
It prevents a proposal for a conventional termination made during sick leave from being systematically used as evidence against the company.
But its scope must be nuanced.
The Court of Cassation does not validate the dismissal pronounced in this case. Nor does it say that no discrimination existed.
It only judges that the court of appeal could not hold that the proposal for a conventional termination constituted, in itself, a sufficient material element to presume discrimination.
The case is therefore sent back to the Grenoble Court of Appeal, which will have to re-examine the situation based on all the circumstances.
What to remember
An employer can propose a conventional termination during sick leave.
This proposal is not automatically discriminatory.
Nor is it sufficient, on its own, to give rise to the presumption of discrimination based on state of health.
On the other hand, the context remains decisive.
Pressure, comments linked to illness, a suspicious chronology or an insufficiently justified dismissal can always lead judges to find discrimination and declare the dismissal null and void.
Reference: Court of Cassation, social chamber, June 17, 2026, no. 25-12.181.
Useful sources and resources
To consult the decision, check the applicable texts or estimate the financial consequences of a conventional termination:
