Participating in sports competitions during a sick leave […]

In a recent decision of February 1^st, 2023, the Social Division of the French Supreme Court (Cour de cassation) revisits the contours of the obligation of loyalty that remains with respect to an employee whose employment contract is suspended due to illness. On this occasion, the Court ruled that participation in sports competitions during work stoppages does not constitute a breach of the duty of loyalty - and de facto does not constitute serious misconduct - as long as it is not shown that such participation would have aggravated the employee's state of health or prolonged his or her work stoppages, thus not causing any prejudice to the employer (Cass. soc. 1^st February 2023, n° 21-20526). While this decision is in line with the High Court's jurisprudence, its motivation may nevertheless offend employers.

• The breach of the duty of loyalty is conditional on the existence of a prejudice caused to the employer

It should be remembered that although during a work stoppage the employee remains bound by an obligation of loyalty towards his employer, the exercise of an activity - whether professional, voluntary or leisure - during this work stoppage does not necessarily constitute a breach of this obligation. Indeed, the Court of Cassation traditionally holds that the breach will only be characterized if this activity has caused damage to the employer (Cass. soc. October 12, 2011 No. 10-16649; Cass. soc. November 21, 2018 No. 16-28513). Thus, the exercise of an activity, even if remunerated, within a company carrying on an activity that is not in competition with the employer does not constitute a breach of the duty of loyalty... The Court requires - which is open to criticism - that the activity in which the employee is engaged is in competition with that of his employer in order for the damage to be established (Cass. soc. 23 November 2010 n° 09-67249).

• Les faits de l'affaire

In this case, an RATP control operator who participated in 14 badminton competitions during his 5 prescribed work stoppages between October 2016 and November 2017 was dismissed for gross misconduct due to a breach of his duty of loyalty to his employer. Believing that he had not breached this obligation during his work stoppages, he brought an action before the labour court to contest the validity of his dismissal. All of his claims were dismissed, and the employee appealed. The Court of Appeal, in a judgment dated June 9, 2021, reversed the judgment of 1^st Instance rules that the dismissal is without real or serious cause on the grounds that RATP did not demonstrate that this participation would have had the effect of aggravating the employee's state of health and prolonging his work stoppages (CA Paris, Pôle 6 - chamber 10, June 9, 2021 n° 19/10260). RATP then appealed to the Court of Cassation.

• The solution: the need to demonstrate the aggravation of the employee's health condition

The Court of Cassation will nevertheless validate the decision of the appeal judges. In support of its appeal, the employer relied in particular on the economic and financial prejudice caused when it is the employer who is responsible for covering the risks of illness, industrial accidents and occupational diseases for its employees under a special social security scheme. He thus argued that the employee's participation, during a work stoppage fully paid by the employer, in unauthorized activities clearly incompatible with the work incapacity at the origin of his work stoppage, constitutes a breach of the employee's duty of loyalty, so that the resulting economic and financial prejudice for the employer could thus justify his dismissal. However, the Court of Cassation will - not surprisingly - reject this argument. After recalling the principle on the condition of the existence of a prejudice, the High Court specifies that : "This prejudice cannot result from the mere maintenance of the full salary, as a consequence of the work stoppage, assumed by the employer who insures himself the sickness risk of his employees." Thus, remaining consistent with its case law concerning the private sector, according to which the prejudice caused cannot result solely from the payment by the employer of additional salary during the sick leave (Cass. soc. February 26, 2020 n^o 18-10.017; Cass. soc. December 7, 2022 N^o. 21-19.132). Another ground raised by the employer in support of its appeal was that:

• The only purpose of a work stoppage caused by illness, industrial accident or occupational disease is to allow the employee to recover his or her health and to be able to return to work;
• that the absence of an employee on sick leave necessarily causes prejudice to the employer who is obliged, for the duration of this absence, to incur expenses to maintain the employee's remuneration, to reorganize his activity and/or to proceed with the replacement of the person concerned;
• that it follows that the exercise by the employee, during a work stoppage, of an activity clearly incompatible with the work incapacity at the origin of this work stoppage, likely to aggravate his state of health or leading to the presumption that he has in fact recovered his health, constitutes an act of disloyalty on the part of the employee which causes the employer functional and economic damage

The argument seemed unstoppable, since we discover from the judgment that the employee had suffered several work stoppages following injuries to his elbow and arm, which prevented him from performing his duties as a control operator. The practice of badminton, a fortiori in competition, did not seem de facto indicated for a fast recovery... However, the Court of Cassation did not fully agree with this analysis, and rejected the argument on the grounds that it had not been demonstrated that this participation would have aggravated the employee's state of health or prolonged his time off work: "The appellate court found that, during the five prescribed work stoppages between October 2016 and November 2017, the employee participated in 14 badminton competitions and noted that it was not demonstrated that this participation would have aggravated the employee's state of health or prolonged his work stoppages, so that it was not established that this activity would have caused prejudice to the employer. It deduced exactly that these facts did not characterize a breach of the obligation of loyalty which continues during the period of work stoppage and did not constitute serious misconduct.

• Practical difficulties raised by this decision

While this reasoning suggests that if the employer had been able to prove an aggravation of the employee's state of health due to his practice of sports or a prolongation of his absence from work due to it, the Court would have considered that the prejudice was established and the termination of the employment contract justified, it is however not without raising some questions. Indeed, in practice, how could the employer provide such proof? Especially if he discovers the facts several months later, the work stoppage may even be over. Does this mean that it would be up to the employer to request a medical expertise during the proceedings? The occupational physician does not appear to be competent to give an opinion on such a question. We therefore await with interest future decisions that will illustrate the methods of proof to be provided by the employer. In the meantime, if the employer cannot take disciplinary action, it should be remembered that he can ask the Social Security Fund to carry out an inspection at the employee's home. If it finds that the employee is engaged in an activity, whether professional or recreational, that has not been expressly authorized by his or her attending physician, it may order the cancellation of daily sickness benefits (Cass. 2^nd civ. December 9, 2010 n° 09-14575). Similarly, if, due to the employee's activity, the medical examination requested by the employer cannot take place, the employer may suspend the payment of supplementary sickness benefits to the employee (Cass. soc. 9 December 1992 n° 89-42547).