Absence of health pass: dismissal is always possible

By fashionlifeshopping 20/07/2022 1241 Views

The suspension of contract has been favored in dismissal for a permanent employee with vaccine obligation.Which is not necessarily good news, neither for employees, nor for employers.But in this no, legal man's, the dismissal is possible.And it may not be bad news, neither for the employee, nor for the employer.Explanation.

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The health bill addresses several points concerning work and employees, in particular those refusing to present a valid health pass.The government had provided in the initial law a provision allowing the dismissal after two months, if the employee did not meet his vaccination obligation (health personnel, for example) or at least to the presentation of a health passvalid (employees of cultural places and events and soon to restore).

In the latest text of the bill adopted, the Senate deleted the dismissal measure after two months, in the event of the employee's refusal to put himself in order in relation to his vaccination obligation.The suspension of the employment contract, and therefore suspension of salary for the employee, was preferred to dismissal.But it is not necessarily more protective.And the dismissal remains possible...without the supervision provided in the first version of the text.

CDI, CDD: two separate regimes

The suspension of the employment contract only applies to health professionals and employees subject to the health pass being on permanent contract.For employees on fixed -term or temporary workers (very numerous in the sectors subject to the health pass), it is quite something.In the final version of the bill, the possibility for the employer to break the contract in advance has been maintained for these two categories of precarious employees.Employees on fixed -term contracts will then be able to receive the end of contract indemnity (the precariousness bonus) and those in interim, the end of mission allowance.

Tips

To remember if you do not have a health pass: - employees on permanent contracts → suspension of contract (without pay) - employees in fixed -term or temporary workers → early contract termination (compensation + unemployment)

"We must not suggest to employees that there can be no layoffs"

Absence de pass sanitaire : le licenciement est toujours possible

Nevertheless, the suspension of the employment contract for employees on permanent contracts not respecting their vaccination obligation, does not exercise these in a possible dismissal.As Elisabeth Borne, Minister of Labor, on Tuesday, July 27 said, "we must not suggest to employees that there can be no layoffs", despite the abolition of this provision by the Senate."This does not mean that there cannot be a dismissal, it means that it is less framed and that it may be able to intervene earlier.We are in the ordinary law of the labor code, ”she added.

Prior to dismissal options

To avoid arriving at the dismissal or suspension of the employment contract, the government largely encourages employees to be vaccinated."Since the start, the objective is to convince employees and facilitate them vaccination.This is why we provided in the law an absence authorization to be vaccinated on your working time, without loss of remuneration, ”said Elisabeth Borne, on BFM TV Tuesday, July 27.

In addition, if the employee is unable to issue a valid health pass, it is planned "that there is an interview with the employer to see how he can meet his obligation: take RTT or days ofleave and perhaps also to see with the employer if he can be repositioned on a position that does not require a health pass, ”said the Minister of Labor.

If this reallocation on another position is not possible, other contracts of breach of contract are envisaged, depending on the nature of the latter.For example for a fixed -term contract, a breach of contract can be considered, which would allow the employee in the event of agreement between the two parties to receive the dismissal allowances.If, after the interview, no agreement has been reached between the employee and the employer, the suspension of the employment contract is therefore provided.

But points still remain obscure concerning this provision: how long can the suspension of the contract last?And what about the employee who finds himself deprived of salary and the employer who cannot recruit another person to replace him?

What if the dismissal was preferable?

Some employers' representatives have expressed their doubts and questions about this measure of suspension of employment contract, notably pointing out the issues and legal vacuum that it raises.

This is the case of François Asselin, the president of the Confederation of Small and Medium Enterprises, who expressed this Monday morning on France Info of his fears about "a kind of no man's land", without "economic security or legal security»For employees and their bosses.

"I don't really know how it can be managed concretely because you have an employee on the one hand who refuses to be vaccinated, who cannot come and work and an employer who cannot make him work, a remuneration thatis suspended and an employer who will find himself in an organizational vacuum because he can replace this person? We do not know it, ”summed up François Asselin:

Contract suspension and labor law: an unclear question

The suspension of the employment contract, for an employee on a permanent contract with vaccination obligation, also poses issues vis-à-vis the labor code, in particular on how this can be part of it compared to ordinary law currently in force.It is very likely that the question will soon be addressed in more detail by representatives of labor unions but also by deputies.

In the meantime, Elisabeth Borne considered that "if the health situation requires it and that these provisions must be extended then we will have to return to Parliament to properly supervise this procedure and, if necessary, the dismissal".

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