The case : Injured several times in the arm as part of his work, an RATP controller was prescribed sick leave, during which he allowed himself to participate in a dozen badminton competitions! Dismissed for lack of loyalty to his employer, he takes the case to court. In turn, the Court of Appeal then the Court of Cassation ruled in his favor (1).
The lawyer’s response: This is a stop that more than one reader should find very surprising. Who says sick leave says, a priori, a suffering person forced to rest. Even passes that it pursues a moderate sporting activity. But no question of going to participate in competitions! Well, the law doesn’t always keep up with popular common sense. This case illustrates this well. To be able to validly accuse an employee of a fault, an employer must demonstrate that this situation has caused him real harm. However, it is difficult to prove that an employee playing sports harms his company. Admittedly, the latter remunerates him in part in addition to Social Security.
In this story, the RATP, which has a specific status, even paid the entire salary via an internal social fund. But for the judges, this is not enough. The sole purpose of sick leave is to restore health before returning to work when the doctor deems it appropriate. What happens during the leave does not concern the employer, the employment contract being even officially suspended. It should be noted, however, that it could be otherwise if, for example, a “sick” person injured himself or worsened his state of health while playing sports and had to extend his stoppage. The prejudice could then be established and legitimize a sanction by the employer.
Does an employee on sick leave have the right to work for another employer?
(1) Cass. soc., 1 February 2023, n°21-20.526.
By Jérôme Bénéteau, associate lawyer at Fromont Briens.
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